exv10w1



 





Exhibit 10.1




SECOND AMENDED AND RESTATED 



UNSECURED CREDIT AGREEMENT




DATED AS OF AUGUST 1, 2007




AMONG




BIOMED REALTY, L.P.,

AS BORROWER




AND




KEYBANK NATIONAL ASSOCIATION

AS ADMINISTRATIVE AGENT AND LEAD ARRANGER




AND




U.S. BANK NATIONAL ASSOCIATION AND WACHOVIA BANK, N.A.

AS CO-SYNDICATION AGENTS




AND




LASALLE BANK NATIONAL ASSOCIATION AND SOCIETE GENERAL

AS CO-DOCUMENTATION AGENTS




AND




THE SEVERAL LENDERS

FROM TIME TO TIME PARTIES HERETO,

AS LENDERS




 









 





SECOND AMENDED AND RESTATED



UNSECURED CREDIT AGREEMENT




Dated as of August 1, 2007




     This SECOND AMENDED AND RESTATED UNSECURED CREDIT AGREEMENT is entered into as of August 1,
2007 (the “Agreement Effective Date”) by and among BIOMED REALTY, L.P., a Maryland limited
partnership (“Borrower” or “Operating Partnership”), KEYBANK NATIONAL ASSOCIATION, a national
banking association (“KeyBank”), each lender whose name is set forth on the signature pages of this
Agreement, and each lender which may hereafter become a party to this Agreement pursuant to
Section 2.8 or Section 11.8 (collectively, together with KeyBank, the “Lenders”
and, individually, a “Lender”) and KEYBANK NATIONAL ASSOCIATION, not individually but as
“Administrative Agent.”



RECITALS




     WHEREAS, certain of the Lenders have previously provided an unsecured revolving credit
facility to Borrower pursuant to a First Amended and Restated Unsecured Credit Agreement dated as
of June 28, 2006 as amended by a First Amendment thereto dated as of November 3, 2006
(collectively, the “Prior Agreement”);



     WHEREAS, Borrower has requested that the Lenders amend and restate the Prior Agreement to
extend the maturity date thereof, provide for the possible addition of a term loan component and
make certain other modifications thereto; and



     WHEREAS, the Lenders are willing to do so on the terms set forth in this Agreement.



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



ARTICLE 1




DEFINITIONS AND ACCOUNTING TERMS




     1.1 Defined Terms. As used in this Agreement, the following terms shall have the
meanings set forth below:



     “Adjusted Current Value” means, as of any date with respect to any Income-Producing
Project, (i) if such Project has been owned by one or more members of the Consolidated Group for at
least one full Fiscal Quarter for which financial results have been reported, the Adjusted NOI for
such Project divided by the Capitalization Rate or (ii) if such Project has not been so owned for a
full Fiscal Quarter, the purchase price paid for such Project, net of fees and closing costs.



     “Adjusted EBITDA” means, as of any date, (a) EBITDA with respect to the Consolidated
Group for the most recent Fiscal Quarter for which financial results have been reported less (b)
Capital Reserves divided by four (4).



     “Adjusted NOI” means, as of any date with respect to any Project or group of Projects,
an annualized amount determined by multiplying four (4) times NOI of such Project or group of
Projects for the most recent Fiscal Quarter for which financial results have been reported and



 









 







deducting therefrom the then-current annualized Capital Reserves with respect to such Project
or group of Projects.



     “Adjusted Unencumbered NOI” means, as of any date, Adjusted NOI attributable to
Qualified Unencumbered Projects that are then included in the Unencumbered Pool, provided that,
with respect to any such Qualified Unencumbered Project that was either (i) acquired by the
Consolidated Group after the first day of the Fiscal Quarter on which such Adjusted NOI is based,
or (ii) first opened for occupancy after the first day of such Fiscal Quarter, the Adjusted NOI for
such Project for such Fiscal Quarter shall be deemed to be increased by the per diem Adjusted NOI
for such Project after acquisition or opening times the number of days in such Fiscal Quarter prior
to the date of acquisition.



     “Administrative Agent” means KeyBank, when acting in its capacity as the
Administrative Agent under any of the Loan Documents, or any successor Administrative Agent.



     “Administrative Agent’s Office” means the Administrative Agent’s office located at 127
Public Square, Cleveland, Ohio 44114, or such other office as the Administrative Agent hereafter
may designate by written notice to Borrower and the Lenders.



     “Advance” means any advance made or to be made by any Lender to Borrower as provided
in Article 2, and includes each Alternate Base Rate Advance and LIBOR Rate Advance, whether
such advance is a Line Advance or a Term Advance.



     “Affiliate” means, as to any Person, any other Person which directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As used in this
definition, “control” (and the correlative terms, “controlled by” and “under common control with”)
shall mean possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise); provided that, in any event, any Person which owns,
directly or indirectly, 10% or more of the securities having ordinary voting power for the election
of directors or other governing body of a corporation, or 10% or more of the partnership or other
ownership interests of any other Person, will be deemed to be an Affiliate of such corporation,
partnership or other Person.



     “Aggregate Adjusted Current Value” means, as of any date, the sum of (i) the Adjusted
Current Values for all Income-Producing Projects (other than the HGS Borrowing Base Project) then
included in the Unencumbered Pool plus (ii) if the HGS Borrowing Base Project is then
included in the Unencumbered Pool, either (x) until the repurchase right held by the former owner
of the HGS Borrowing Base Project has expired unexercised or otherwise been terminated, the lesser
of (A) the Net HGS Repurchase Price and (B) the Adjusted Current Value for the HGS Borrowing Base
Project or (y) thereafter, the Adjusted Current Value for the HGS Borrowing Base Project.



     “Aggregate Commitment” means, subject to Section 2.7 and Section 2.8,
Six Hundred Million Dollars ($600,000,000). The respective Commitments and Percentages of the
Lenders with respect to the Aggregate Commitment are set forth on Schedule 1.1.



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     “Aggregate Line Commitment” means the initial Aggregate Commitment of $600,000,000
plus any increase in the Aggregate Commitment under Section 2.8, which is not a
Term Commitment.



     “Aggregate Term Commitment” means zero as of the Agreement Effective Date and
thereafter means the aggregate of all Term Commitments hereunder, not to exceed $400,000,000.



     “Agreement” means this Second Amended and Restated Unsecured Credit Agreement, either
as originally executed or as it may from time to time be extended, supplemented, consolidated,
amended, restated, increased, renewed or modified.



     “Alternate Base Rate” means, as of any date of determination, the rate per annum equal
to the higher of (a) the Prime Rate in effect on such date and (b) the Federal Funds Effective Rate
in effect on such date plus one-half of 1% (50 basis points) plus, in either case, the then-current
Applicable Margin.



     “Alternate Base Rate Advance” means an Advance made hereunder and specified to be an
Alternate Base Rate Advance in accordance with Article 2.



     “Alternate Base Rate Loan” means a Loan made hereunder and specified to be an
Alternate Base Rate Loan in accordance with Article 2.



     “Applicable Margin” means the interest rate margin set forth below in the LIBOR Rate
Margin column with respect to LIBOR Rate Loans or in the Base Rate Margin column with respect to
Alternate Base Rate Loans, as the case may be, opposite the Leverage Ratio as of the last day of
the Fiscal Quarter most recently ended:



	 	 	 	 	 	 	 	 	 
	Leverage Ratio	 	LIBOR Rate Margin	 	Base Rate Margin
	Less than 35%
	 	 	1.00	%	 	 	0	%
	Equal to or greater than 35% but less than 45%
	 	 	1.10	%	 	 	0	%
	Equal to or greater than 45% but less than 55%
	 	 	1.20	%	 	 	0	%
	Equal to or greater than 55% but less than 60%
	 	 	1.35	%	 	 	0.15	%
	Equal to or greater than 60%
	 	 	1.55	%	 	 	0.25	%






     The Applicable Margin for each Fiscal Quarter shall be established based on the Leverage
Ratio in effect as of the last day of the preceding Fiscal Quarter; provided,
however, that any such change in the Applicable Margin (and therefore any change in the
applicable interest rates for Loans) shall not be effective until 50 days following the
commencement of each Fiscal Quarter. Each previously Applicable Margin shall remain in effect
until a new Applicable Margin is established as aforesaid. If Borrower fails to deliver a
Compliance Certificate containing the necessary financial information within 50 days after the end
of each Fiscal Quarter in order to determine the new Applicable Margin, or should the
Administrative Agent reasonably believe that such financial information does not accurately reflect
the Leverage Ratio, the Administrative Agent may of its own volition, upon prior written notice to
Borrower (which notice shall include the basis for the Administrative Agent’s determination),
establish the Applicable Margin based upon what the Administrative Agent reasonably believes was in
fact the Leverage Ratio as of the last day of the prior Fiscal Quarter.



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     “Banking Day” means (i) with respect to any borrowing, payment or rate selection of
LIBOR Rate Advances, a day (other than a Saturday or Sunday) on which banks generally are open in
Cleveland, Ohio, and New York, New York for the conduct of substantially all of their commercial
lending activities and on which dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally
are open in Cleveland, Ohio, and New York, New York for the conduct of substantially all of their
commercial lending activities.



     “Bayshore Project” means the Project currently owned by Borrower and located in
Brisbane, California.



     “Borrowing Base” means, as of any date, an amount equal to (i) sixty-five percent
(65%) of the Aggregate Adjusted Current Value of those Income-Producing Projects in the
Unencumbered Pool, plus (ii) sixty-five percent (65%) of the Invested Cash in Unstabilized
Projects in the Unencumbered Pool, provided, however, that (A) the aggregate amount contributed to
the Borrowing Base under clause (ii) with respect to Unstabilized Projects shall in no event exceed
twenty percent (20%) of the total Borrowing Base and (B) the aggregate amount contributed to the
Borrowing Base on account of Exception Projects shall in no event exceed ten percent (10%) of the
total Borrowing Base.



     “Capital Lease Obligations” means all monetary obligations of a Person under any
leasing or similar arrangement which, in accordance with Generally Accepted Accounting Principles,
is classified as a capital lease, other than those obligations so classified solely as a result of
FAS 141.



     “Capital Reserves” means, as of any date with respect to any Income-Producing Project
or group of Income-Producing Projects, an annual amount equal to (i) $0.30 per square foot of the
aggregate Net Rentable Area of those Income-Producing Projects owned by a member of the
Consolidated Group as of the last day of the most recent Fiscal Quarter for which financial results
have been reported and (ii) the applicable Consolidated Group Pro Rata Share of $0.30 per square
foot of the Net Rentable Area of those Income-Producing Projects owned by an Investment Affiliate
as of the last day of such Fiscal Quarter.



     “Capitalization Rate” means eight and one-quarter of one percent (8.25%). The
Capitalization Rate shall be reviewed annually by the Lenders and may be adjusted (upward or
downward) effective as of each anniversary of the date of this Agreement to such percentage as the
Requisite Lenders may determine, in good faith and in their reasonable discretion, after
consultation with Borrower, to reflect then-current capitalization rates for similar assets.



     “Cash Equivalents” means, as of any date:




     (i) securities issued or directly and fully guaranteed or insured by the United States
of America government or any agency or instrumentality thereof having maturities of not more
than one year from such date;




     (ii) mutual funds organized under the United States Investment Company Act of 1940, as
amended, rated AAm or AAm-G by S&P and P-1 by Moody’s;



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     (iii) certificates of deposit or other interest-bearing obligations of a bank or trust
company which is a member in good standing of the Federal Reserve System having a short term
unsecured debt rating of not less than A-1 by S&P and not less than P-1 by Moody’s (or in
each case, if no bank or trust company is so rated, the highest comparable rating then given
to any bank or trust company, but in such case only for funds invested overnight or over a
weekend) provided that such investments shall mature or be redeemable upon the option of the
holders thereof on or prior to a date one month from the date of their purchase;




     (iv) certificates of deposit or other interest-bearing obligations of a bank or trust
company which is a member in good standing of the Federal Reserve System having a short term
unsecured debt rating of not less than A-1+ by S&P, and not less than P-1 by Moody’s and
which has a long term unsecured debt rating of not less than A1 by Moody’s (or in each case,
if no bank or trust company is so rated, the highest comparable rating then given to any
bank or trust company, but in such case only for funds invested overnight or over a weekend)
provided that such investments shall mature or be redeemable upon the option of the holders
thereof on or prior to a date three months from the date of their purchase;




     (v) bonds or other obligations having a short term unsecured debt rating of not less
than A-1+ by S&P and P-1+ by Moody’s and having a long term debt rating of not less than A1
by Moody’s issued by or by authority of any state of the United States of America, any
territory or possession of the United States of America, including the Commonwealth of
Puerto Rico and agencies thereof, or any political subdivision of any of the foregoing;




     (vi) repurchase agreements issued by an entity rated not less than A-1+ by S&P, and not
less than P-1 by Moody’s which are secured by United States of America government securities
of the type described in clause (i) of this definition maturing on or prior to a date one
month from the date the repurchase agreement is entered into;




     (vii) short term promissory notes rated not less than A-1+ by S&P, and not less than
P-1 by Moody’s maturing or to be redeemable upon the option of the holders thereof on or
prior to a date one month from the date of their purchase; and




     (viii) commercial paper (having original maturities of not more than 365 days) rated at
least A-1+ by S&P and P-1 by Moody’s and issued by a foreign or domestic issuer who, at the
time of the investment, has outstanding long-term unsecured debt obligations rated at least
A1 by Moody’s.



     “Certificate” means a certificate signed by a Senior Officer or Responsible Official
(as applicable) of the Person providing the certificate.



     “CFLS Project” means that certain Project known as the Center for Life Sciences
Building located at 3 Blackfan Street, Boston, Massachusetts, consisting of approximately 1.520
acres of land on which an eighteen (18) story office building/laboratory research center containing
approximately 705,642 rentable square feet is under construction and which is owned in fee simple
by a Wholly-Owned Subsidiary of Borrower.



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     “Closing Date” means the time and Banking Day on which the conditions set forth in
Section 8.1 are satisfied or waived. The Administrative Agent shall notify Borrower and
the Lenders of the date that is the Closing Date.



     “Code” means the Internal Revenue Code of 1986, as amended or replaced and as in
effect from time to time.



     “Commitments” means, collectively, all of the Line Commitments and all of the Term
Commitments, if any.



     “Commitment Assignment and Acceptance” means an assignment and acceptance agreement
substantially in the form of Exhibit A.



     “Compliance Certificate” means a certificate in the form of Exhibit B,
properly completed and signed by a Senior Officer of Borrower.



     “Confidential Information” means (i) all of the terms, covenants, conditions or
agreements set forth in this Agreement or any amendments hereto and any related agreements of
whatever nature, (ii) the information and reports provided in compliance with Article 7 of
this Agreement, (iii) any and all information provided, disclosed or otherwise made available to
the Administrative Agent and the Lenders including, without limitation, any and all plans, maps,
studies (including market studies), reports or other data, operating expense information, as-built
plans, specifications, site plans, drawings, notes, analyses, compilations, or other documents or
materials relating to the Projects or their condition or use, whether prepared by Borrower or
others, which use, or reflect, or that are based on, derived from, or are in any way related to the
foregoing, and (iv) any and all other information of Parent, its Subsidiaries or the Investment
Affiliates that the Administrative Agent or any Lender may have access to including, without
limitation, ideas, samples, media, techniques, sketches, specifications, designs, plans, forecasts,
financial information, technical information, drawings, works of authorship, models, inventions,
know-how, processes, apparatuses, equipment, algorithms, financial models and databases, software
programs, software source documents, manuals, documents, properties, names of tenants or potential
tenants, vendors, suppliers, distributors and consultants, and formulae related to the current,
future, and proposed products and services of Parent, its Subsidiaries, the Investment Affiliates,
tenants or potential tenants (including, without limitation, information concerning research,
experimental work, development, design details and specifications, engineering, procurement
requirements, purchasing, manufacturing, customer lists, investors, employees, clients, business
and contractual relationships, business forecasts, and sales and marketing plans). Such
Confidential Information may be disclosed or accessible to the Administrative Agent and the Lenders
as embodied within tangible material (such as documents, drawings, pictures, graphics, software,
hardware, graphs, charts, or disks), orally, or visually.



     “Consolidated Group” means Parent, Borrower and all Subsidiaries of Borrower which are
consolidated with Parent and Borrower for financial reporting purposes under GAAP.



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     “Consolidated Group Pro Rata Share” means, with respect to any Investment Affiliate,
the percentage of the issued and outstanding stock, partnership interests or membership interests
held by the Consolidated Group in the aggregate in such Investment Affiliate.



     “Consolidated Outstanding Indebtedness” means, as of any date of determination,
without duplication, the sum of (a) all Indebtedness of the Consolidated Group outstanding at such
date, determined on a consolidated basis in accordance with GAAP (whether recourse or
non-recourse), plus, without duplication, (b) the applicable Consolidated Group Pro Rata Share of
any Indebtedness of each Investment Affiliate other than Indebtedness of such Investment Affiliate
to a member of the Consolidated Group.



     “Continuing Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project which was leasing space in such Project at all times during such
Fiscal Quarter and paying rent.



     “Contractual Obligation” means, as to any Person, any provision of any outstanding
security issued by that Person or of any material agreement, instrument or undertaking to which
that Person is a party or by which it or any of its Property is bound.



     “Controlled Entity” means a Person (a) that is a Subsidiary of Parent, (b) that is a
general partnership or a limited partnership in which Borrower or a Wholly-Owned Subsidiary of
Borrower is the sole managing general partner and such managing general partner has the sole power
to (i) sell all or substantially all of the assets of such Person, (ii) incur Indebtedness in the
name of such Person, (iii) grant a Lien on all or any portion of the assets of such Person and (iv)
otherwise generally manage the business and assets of such Person or (c) that is a limited
liability company for which Borrower or a Wholly-Owned Subsidiary of Borrower is the sole manager
and such manager has the sole power to do the acts described in subclauses (i) through
(iv) of clause (b) above.



     “Debt Offering” means the issuance and sale by any member of the Consolidated Group of
any debt securities of such member, excluding debt securities issued to and retained by another
member of the Consolidated Group.



     “Debt Service” means, for any Fiscal Quarter, the sum of all Interest Expense and all
mandatory or regularly scheduled principal payments due and payable during such Fiscal Quarter on
the related Indebtedness, excluding any balloon payments due upon maturity of such Indebtedness
(provided that Debt Service with respect to the Consolidated Group shall include only the
applicable Consolidated Group Pro Rata Share of all such principal payments for such Fiscal Quarter
with respect to Indebtedness of Investment Affiliates). Debt Service shall include the portion of
rent payable by a Person during such Fiscal Quarter under Capital Lease Obligations that should be
treated as principal in accordance with Generally Accepted Accounting Principles.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States of America, as
amended from time to time, and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.



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     “Default” means any event that, with the giving of any applicable notice or passage of
time specified in Section 9.1 or both, would be an Event of Default.



     “Defaulting Lender” means (a) any Lender that has failed to fund any Advance within
two (2) Banking Days after such funding is required pursuant to this Agreement; or (b) any Lender
that has (i) breached any other material term or condition of this Agreement or (ii) failed to make
any other payment to the Administrative Agent (whether such payment is a reimbursement for costs,
expenses or attorneys’ fees, an indemnity payment, the repayment of erroneously paid funds, a
portion of any set-off to be turned over to the Administrative Agent or otherwise) when such
payment is due and payable under this Agreement or any other Loan Document, if such breach or
failure has not been cured or paid within ten (10) days after notice thereof from the
Administrative Agent to such Lender.



     “Default Rate” means the interest rate prescribed in Section 3.6.



     “Designated Deposit Account” means a deposit account to be maintained by Borrower with
KeyBank or one of its Affiliates, as from time to time designated by Borrower by written
notification to the Administrative Agent.



     “Distribution” means, with respect to any shares of capital stock or any warrant or
option to purchase an equity security or other equity security or interest issued by a Person, (i)
the retirement, redemption, purchase or other acquisition for cash or for Property by such Person
of any such security or interest, (ii) the payment by such Person of any dividend in cash or in
Property on or with respect to any such security or interest, (iii) any Investment by such Person
in the holder of 5% or more of any such security or interest if a purpose of such Investment is to
avoid characterization of the transaction as a Distribution or (iv) any other payment in cash or
Property by such Person constituting a distribution under applicable Laws with respect to such
security or interest.



     “Dollars” or “$” means United States of America dollars.



     “EBITDA” means, with respect to any Person for any Fiscal Quarter, the Net Income of
such Person (from operations and from discontinued operations) for that Fiscal Quarter, before (i)
interest, income taxes, minority interests, depreciation, amortization and all other non-cash
expenses (including non-cash compensation, to the extent not actually paid as a cash expense) of
such Person for that Fiscal Quarter and (ii) extraordinary gains (and losses) of such Person, in
each case as determined on a consolidated basis in accordance with Generally Accepted Accounting
Principles; provided, that in performing the foregoing calculation of EBITDA with respect
to the Consolidated Group, that portion of EBITDA attributable to the Consolidated Group’s equity
interests in any Investment Affiliates shall be deducted, and the applicable Consolidated Group Pro
Rata Share of EBITDA in each such Investment Affiliate shall be added back into the calculation.



     “Eligible Assignee” means (a) another Lender, (b) with respect to any Lender, any
Affiliate of that Lender, (c) any commercial bank having a combined capital and surplus of
$5,000,000,000 or more, (d) the central bank of any country which is a member of the Organization
for Economic Cooperation and Development, (e) any savings bank, savings and loan association or
similar financial institution which (A) has a net worth of $500,000,000 or more, (B) is engaged in
the



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business of lending money and extending credit under credit facilities substantially similar
to those extended under this Agreement and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a commercial bank, and (f) any other
financial institution (including a mutual fund or other fund) approved by the Administrative Agent
and, unless an Event of Default shall have occurred and be continuing, Borrower (such approval not
to be unreasonably withheld or delayed) having total assets of $500,000,000 or more which meets the
requirements set forth in subclauses (B) and (C) of clause (e) above;
provided that each Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of Columbia or (b) be organized under
the Laws of the Cayman Islands or any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a country, and (i) act hereunder
through a branch, agency or funding office located in the United States of America and (ii) be
exempt from withholding of tax on interest and deliver the documents related thereto pursuant to
Section 11.21.



     “Employee Plan” means any (a) employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to Title I of ERISA, (b) any plan (as defined in Section 4975(e)(1) of the
Code) that is subject to Section 4975 of the Code, (c) any entity the underlying assets of which
include plan assets (as defined in 29 C.F.R. Section 2510.3-101 or otherwise under ERISA) by reason
of a plan’s investment in such entity (including an insurance company general account), or (d) a
governmental plan (as defined in Section 3(32) of ERISA or Section 414(d) of the Code) organized in
a jurisdiction within the United States of America having prohibitions on transactions with such
governmental plan substantially similar to those contained in Section 406 of ERISA or Section 4975
of the Code.



     “Equity Offering” means the issuance and sale by any member of the Consolidated Group
of any equity securities of such member, excluding equity securities issued to and retained by
another member of the Consolidated Group.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and any regulations
issued pursuant thereto, as amended or replaced and as in effect from time to time.



     “ERISA Affiliate” means each Person (whether or not incorporated) which is required to
be aggregated with Parent pursuant to Section 414 of the Code.



     “Event of Default” shall have the meaning provided in Section 9.1.



     “Exception Projects” means, as of any date, any Qualified Unencumbered Project (other
than the Landmark at Eastview Project and the KOP Project) which is not wholly-owned in fee simple
by Borrower or a Wholly-Owned Subsidiary of Borrower but which (i) is owned by a member of the
Consolidated Group and (ii) has been added to, and is then included in, the Unencumbered Pool
pursuant to the exceptions provided in Section 2.11.



     “Excluded Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project (i) whose lease expired or was terminated during such Fiscal
Quarter or within thirty (30) days after the expiration of such Fiscal Quarter or (ii) which either
defaulted in the payment of any of its lease obligations during such Fiscal Quarter (and such



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payment default is continuing after all required notices have been given and all applicable
cure periods provided for in such lease have expired) or was the debtor in a voluntary or
involuntary proceeding under any Debtor Relief Law during such Fiscal Quarter.



     “Facility” means the Loans, Swing Loans and Letters of Credit made available to
Borrower hereunder from time to time by the Lenders.



     “Facility Availability Amount” means, as of any date, the lowest of (a) the Aggregate
Commitment, (b) the Borrowing Base as of such date less the excess, if any, of Total Unsecured
Indebtedness (excluding Subordinated Debt) over the Outstanding Facility Amount and (c) the maximum
aggregate Outstanding Facility Amount that could be outstanding on such date without causing the
Unsecured Debt Service Coverage Ratio to fall below 2.00 to 1.00.



     “FAS 141” means Statement No. 141 issued by the Financial Accounting Standards Board.



     “Federal Funds Effective Rate” shall mean, for any day, the rate per annum announced
by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the previous trading day,
as computed and announced by such Federal Reserve Bank in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds
Effective Rate.”



     “Fee Letter” means that certain fee letter dated as of June 29, 2007 among the Parent,
Borrower and the Administrative Agent.



     “Fiscal Quarter” means the fiscal quarter of the Consolidated Group ending on each
March 31, June 30, September 30 and December 31.



     “Fiscal Year” means the fiscal year of Borrower ending on each December 31.



     “Fixed Charge Coverage Ratio” means, as of any date, (a) Adjusted EBITDA divided by
(b) the sum of (i) Debt Service with respect to the Consolidated Group plus (ii)
all Preferred Distributions of the Consolidated Group plus (iii) the Consolidated Group Pro
Rata Share of all Preferred Distributions of Investment Affiliates, in each case based on the most
recent Fiscal Quarter for which financial results have been reported.



     “Funds From Operations” with respect to any fiscal period shall have the same meaning
determined from time to time by the National Association of Real Estate Investment Trusts to be the
meaning most commonly used by its members.



     “Generally Accepted Accounting Principles” or “GAAP” means, as of any date of
determination, accounting principles (a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently effective Statements of the
Financial Accounting Standards Board or (c) that are then approved by such other entity as may be
approved by a significant segment of the accounting profession in the United States of America.
The term “consistently applied,” as used in connection therewith, means that the accounting



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principles applied are consistent in all material respects with those applied at prior dates
or for prior periods.



     “Governmental Agency” means (a) any international, foreign, federal, state, county or
municipal government, or political subdivision thereof, (b) any governmental or quasi-governmental
agency, authority, board, bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal, each of competent jurisdiction.



     “Gross Asset Value” means, as of any day, an amount equal to the sum of the following
assets then owned by a member of the Consolidated Group or an Investment Affiliate and valued as
follows: (i) Adjusted NOI attributable to Projects owned by a member of the Consolidated Group (or
the Consolidated Group Pro Rata Share thereof with respect to Projects owned by an Investment
Affiliate) (excluding any such portion of such Adjusted NOI attributable to (a) the HGS Borrowing
Base Project, (b) those buildings in the Sun Campus Project not yet designated by Borrower to be
valued based on Adjusted NOI as described below, (c) the CFLS Project, (d) Projects that were
Unstabilized Projects at any time during the Fiscal Quarter with respect to which Adjusted NOI is
determined, (e) Projects acquired after the first day of such Fiscal Quarter, or (f) Projects
disposed of during or after such Fiscal Quarter), divided by the Capitalization Rate;
plus, without duplication, (ii) with respect to the CFLS Project and each such Project that
was an Unstabilized Project, the greater of (a) the portion of such Adjusted NOI attributable to
such Project (or the Consolidated Group Pro Rata Share thereof with respect to any such excluded
Project owned by an Investment Affiliate), divided by the Capitalization Rate and (b) the
Consolidated Group’s GAAP cost basis (or the Consolidated Group Pro Rata Share thereof with respect
to any such excluded Project owned by an Investment Affiliate) in such Project; plus (iii)
either (x) until the repurchase right held by the former owner of the HGS Borrowing Base Project
has expired unexercised or otherwise been terminated, the lesser of (a) the Net HGS Repurchase
Price and (b) the Adjusted NOI attributable to the HGS Borrowing Base Project divided by the
Capitalization Rate, or (y) thereafter, the Adjusted NOI attributable to the HGS Borrowing Base
Project divided by the Capitalization Rate plus (iv) the applicable aggregate acquisition
cost as shown on Exhibit H for those buildings in the Sun Campus Project Borrower has not
yet designated for valuation based on Adjusted NOI by giving an irrevocable written notice to such
effect to the Administrative Agent; plus (v) the acquisition cost of all Projects acquired
after the first day of such Fiscal Quarter and on or prior to such date of determination (or the
Consolidated Group Pro Rata Share thereof with respect to any such acquired Project owned by an
Investment Affiliate); plus (vi) the acquisition cost of all raw land held for development
as of such date (or the Consolidated Group Pro Rata Share thereof with respect to any such land
owned by an Investment Affiliate) (provided that the amount contributed to Gross Asset Value under
this clause (vi) shall not exceed 10% of the total Gross Asset Value); plus (vii) cash and
Cash Equivalents of the Consolidated Group as of such date of determination.



     “Guarantors” means, collectively, (a) Parent, (b) the Initial Unencumbered Project
Subsidiaries, and (c) any other Subsidiary of Borrower that hereafter owns a Qualified Unencumbered
Project and executes a Joinder Agreement pursuant to Section 5.13. Guarantors are jointly
and severally obligated with respect to the Obligations.



     “Guarantee” or “Guaranteed Obligation” means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any other Person or (b)
assurance



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given by that Person to an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such obligation or any
collateral security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the solvency or level of
any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever
nature given for the purpose of assuring or holding harmless such obligee against loss with respect
to any obligation of such other Person; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation in respect of Indebtedness shall be
deemed to be an amount equal to the stated or determinable amount of the related Indebtedness
(unless the Guarantee Obligation is limited by its terms to a lesser amount, in which case to the
extent of such amount) or, if not stated or determinable, the reasonably anticipated liability in
respect thereof as determined by the Person in good faith pursuant to Generally Accepted Accounting
Principles.



     “Guaranties” means that certain Amended and Restated Parent Guaranty dated as of the
Agreement Effective Date executed by Parent in the form attached hereto as Exhibit C-1 and
made a part hereof, and that certain Amended and Restated Subsidiary Guaranty dated as of the
Agreement Effective Date executed by the Initial Unencumbered Project Subsidiaries in the form
attached hereto as Exhibit C-2 and made a part hereof, as such Subsidiary Guaranty may be
amended from time to time including by the joinder of additional Guarantors therein pursuant to a
Joinder Agreement pursuant to Section 5.13.



     “Hazardous Materials” means substances defined as “hazardous substances” pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601
et seq., or as “hazardous”, “toxic” or “pollutant” substances or as “solid waste” pursuant to the
Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. §6901, et seq., or as “friable asbestos” pursuant to the Toxic Substances
Control Act, 15 U.S.C. §2601 et seq. or any other applicable Hazardous Materials Law, in each case
as such Laws are amended from time to time.



     “Hazardous Materials Laws” means all Laws governing the treatment, transportation or
disposal of Hazardous Materials applicable to any of the Projects.



     “HGS Borrowing Base Project” means that certain Project located at 9911 Belward Campus
Drive, Rockville, Maryland consisting of approximately nine and one-half acres of land improved
with a building containing approximately 289,912 gross square feet of laboratory manufacturing
space and owned in fee simple by a Wholly-Owned Subsidiary of Borrower.



     “Income-Producing Project” means any Project other than an Unstabilized Project.



     “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; (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,



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conditional sales contracts 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) Capital Lease Obligations of such Person; (d) all reimbursement obligations of such
Person under any letters of credit or acceptances (whether or not the same have been presented for
payment); (e) all off-balance sheet obligations of such Person; (f) all obligations of such Person
in respect of any repurchase obligation, takeout commitment or forward equity commitment, in each
case evidenced by a binding agreement (it being understood that the term “Indebtedness” shall not
include trade payables incurred in the ordinary course of business or obligations of such Person
under purchase agreements pertaining to potential acquisition by such Person of additional real
properties (and related assets)); (g) net mark to market exposure of such Person under any interest
rate protection agreement (including, without limitation, any interest rate swaps, caps, floors,
collars and similar agreements) and currency swaps and similar agreements; (h) all Indebtedness of
other Persons which such Person has Guaranteed or is otherwise recourse to such Person (except for
guaranties of customary non-recourse “carve-out” 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)); and (i) all
Indebtedness of another Person secured by any Lien on Property owned by such Person, even though
such Person has not assumed or become liable for the payment of such Indebtedness or other payment
obligation. For the avoidance of doubt, Indebtedness shall not include premiums required by FAS 141
as a result of the assumption of Indebtedness bearing an interest rate that was above market
interest rates at the time of assumption.



     “Initial Unencumbered Projects” means the Qualified Unencumbered Projects so
identified in Schedule 4.18.



     “Initial Unencumbered Project Subsidiaries” means the Subsidiaries of Borrower which
own Qualified Unencumbered Projects as of the Agreement Effective Date and have executed the
Guaranty.



     “Intangible Assets” means assets that are considered intangible assets under Generally
Accepted Accounting Principles, including customer lists, goodwill, copyrights, trade
names, trademarks and patents.



     “Interest Expense” means, with respect to the Consolidated Group and measured as of
the last day of the most recent Fiscal Quarter for which financial results have been reported, the
sum of (a) all interest of the Consolidated Group (whether accrued or paid, without duplication)
for such Fiscal Quarter, excluding any non-cash interest expense, but including capitalized
interest due to any Person who is not a member of the Consolidated Group which is not funded from
the proceeds of a construction loan, plus (b) the portion of rent paid or payable by the
Consolidated Group (without duplication) for such Fiscal Quarter under Capital Lease Obligations
that should be treated as interest in accordance with Financial Accounting Standards Board
Statement No. 13, plus (c) the Consolidated Group Pro Rata Share of any interest expense of the
type described in clause (a) and clause (b) above of each Investment Affiliate for such Fiscal
Quarter.



     “Invested Cash” means all cash equity invested by the Consolidated Group in an
Unstabilized Project, including the purchase price, hard construction costs and soft costs
reasonably



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acceptable to the Administrative Agent that have been directly expended toward the acquisition
or development of such Unstabilized Project.



     “Investment” means, when used in connection with any Person, any investment by or of
that Person, whether by means of purchase or other acquisition of stock or other securities of any
other Person or by means of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person, including any partnership and
joint venture interests of such Person. The amount of any Investment shall be the amount actually
invested (minus any return of capital with respect to such Investment which has actually
been received in cash or Cash Equivalents or has been converted into cash or Cash Equivalents),
without adjustment for subsequent increases or decreases in the value of such Investment.



     “Investment Affiliate” means any Person in which the Consolidated Group, directly or
indirectly, has either a controlling interest or a ten percent (10%) or greater ownership interest,
whose financial results, in either case, are not consolidated under GAAP with the financial results
of the Consolidated Group.



     “Joinder Agreement” means the joinder agreement with respect to the Guaranty to be
executed and delivered pursuant to Section 5.13 by any additional Subsidiary Guarantor in
the form of Exhibit C-3 (with such changes thereto as the Administrative Agent shall in its
discretion reasonably require) either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.



     “KOP Project” means that certain Project currently owned by a member of the
Consolidated Group (sometimes referred to by the Parties as the “King of Prussia Project”) and
located in Philadelphia, Pennsylvania.



     “Landmark at Eastview” means that certain Project currently owned by a member of the
Consolidated Group and located in Westchester County, New York.



     “Laws” means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial
precedents.



     “Lead Arranger” means KeyBanc Capital Markets.



     “Lender” means each Lender whose name is set forth in the signature pages of this
Agreement and each lender which may hereafter become a party to this Agreement pursuant to
Section 2.8 or Section 11.8.



     “Letter of Credit” means a standby letter of credit which is payable upon presentation
of a sight draft and other documents, as originally issued pursuant to this Agreement or as
amended, modified, extended, renewed or supplemented thereafter.



     “Letter of Credit Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of
all unreimbursed drawings under Letters of Credit at such time.



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     “Letter of Credit Fee” means the fees payable to the Lenders with respect to a Letter
of Credit as described in Section 2.6(e).



     “Letter of Credit Request” means the request described in Section 2.6.



     “Leverage Ratio” means, as of any day, (a) Consolidated Outstanding Indebtedness as of
such date less Qualifying Trust Preferred Obligations as of such date, divided by (b) Gross
Asset Value as of such date, expressed as a percentage.



     “LIBOR Base Rate” means, with respect to a LIBOR Rate Advance for the relevant LIBOR
Period, the applicable British Bankers’ Association LIBOR rate for deposits in Dollars as reported
by any generally recognized financial information service as of 11:00 a.m. (London time) two
Banking Days prior to the first day of such LIBOR Period, and having a maturity equal to such LIBOR
Period, provided that, if no such British Bankers’ Association LIBOR rate is available to the
Administrative Agent, the applicable LIBOR Base Rate for the relevant LIBOR Period shall instead be
the rate determined by the Administrative Agent to be the rate at which KeyBank or one of its
Affiliate banks offers to place deposits in Dollars with first class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Banking Days prior to the first day of such
LIBOR Period, in the approximate amount of the relevant LIBOR Rate Advance and having a maturity
equal to such LIBOR Period.



     “LIBOR Lending Office” means, as to each Lender, its office or branch so designated by
written notice to Borrower and the Administrative Agent as its LIBOR Lending Office. If no LIBOR
Lending Office is designated by a Lender, its LIBOR Lending Office shall be its office at its
address for purposes of notices hereunder.



     “LIBOR Period” means, as to each LIBOR Rate Loan, the period commencing on the date
specified by Borrower pursuant to Section 2.1(d) and ending 1, 2, 3 or 6 months (or, if
available from all Lenders, 12 months) thereafter, as specified by Borrower in the applicable
Request for Loan; provided that:



     (a) the first day of any LIBOR Period shall be a Banking Day;



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



     (c) any LIBOR Period which begins on a day for which there is no numerically corresponding
date in the calendar month in which such LIBOR Period would otherwise end shall instead end on the
last Banking Day of such calendar month; and



     (d) no LIBOR Period shall extend beyond the Maturity Date.



     “LIBOR Rate” means, as of any date during any LIBOR Period, the sum of (A) the LIBOR
Base Rate applicable to such LIBOR Period divided by one minus the then-current Reserve Percentage
and (B) the then-current Applicable Margin with respect to LIBOR Rate Loans.



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     “LIBOR Rate Advance” means an Advance made hereunder and specified to be a LIBOR Rate
Advance in accordance with Article 2.



     “LIBOR Rate Loan” means a Loan made hereunder and specified to be a LIBOR Rate Loan in
accordance with Article 2.



     “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for
security, security interest, encumbrance, lien or charge of any kind, whether voluntarily incurred
or arising by operation of Law or otherwise, affecting any Property, including any
conditional sale or other title retention agreement, any lease in the nature of a security
interest, and/or the filing of any financing statement (other than a precautionary financing
statement with respect to a lease that is not in the nature of a security interest) under the
Uniform Commercial Code or comparable Law of any jurisdiction with respect to any Property.



     “Life Sciences Buildings” means (i) office buildings, office/laboratory buildings and
research or manufacturing/warehouse buildings, leased primarily to medical, pharmaceutical, biotech
or other life sciences companies, or to companies which are otherwise affiliated with the life
sciences industry, and (ii) traditional office buildings intended to be redeveloped and converted
to buildings leased primarily to the companies described in clause (i) of this definition.



     “Line Advance” means any Advance made from time to time to Borrower hereunder, on a
revolving basis, by a Lender then holding a Line Commitment.



     “Line Commitment” means the commitment of each of the Lenders (as initially specified
in Schedule 1.1 hereto) to make Advances to fund Line Loans on a revolving basis under
Section 2.1(a) and to participate in Letters of Credit issued under Section 2.6 and
Swing Loans made under Section 2.5, as such commitment may increase or decrease pursuant to
the terms of this Agreement.



     “Line Facility” means the Line Loans, Swing Loans and Letters of Credit made available
to Borrower hereunder from time to time by the Lenders under their Line Commitments.



     “Line Lender” means any Lender providing a Line Commitment.



     “Line Loan” means a Loan to Borrower under the Aggregate Line Commitment funded by
Line Advances from the Lenders made pursuant to Section 2.1(a).



     “Line Note” means any of the promissory notes made by Borrower to a Lender holding a
Line Commitment evidencing Line Advances under that Lender’s Percentage of the Aggregate Line
Commitment, substantially in the form of Exhibit D, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed or extended.



     “Loan” means the aggregate of the Advances made at any one time by the Lenders
pursuant to Section 2.1(a) or Section 2.1(b) and the Swing Loans made pursuant to
Section 2.5.



     “Loan Documents” means, collectively, this Agreement, the Notes, the Guaranties and
each Joinder Agreement and any other agreements of any type or nature hereafter executed and
delivered



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by Borrower or Guarantors to the Administrative Agent or to any Lender in any way
relating to or
in furtherance of this Agreement, in each case either as originally executed or as the same
may from time to time be supplemented, modified, amended, restated, extended or supplanted.



     “Loan Parties” means, collectively, as of any date, Borrower and the Guarantors.



     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X.



     “Material Adverse Effect” means (a) a material adverse change in the status of the
business, results of operations or condition (financial or otherwise) of the Consolidated Group
taken as a whole, and/or (b) any set of circumstances or events which (i) has had or would
reasonably be expected to have a material adverse effect upon the validity or enforceability of any
Loan Document (other than as a result of any action or inaction of the Administrative Agent or any
Lender), or (ii) has materially impaired or would reasonably be expected to materially impair the
ability of Borrower and the Guarantors to perform the Obligations.



     “Maturity Date” means (i) with respect to the Line Facility either August 1, 2011
(which is the day immediately preceding the fourth (4th) anniversary of the Agreement Effective
Date), or, if the Maturity Date with respect to the Line Facility is extended pursuant to
Section 2.10, August 1, 2012 and (ii) with respect to any Term Facility, August 1, 2012
(which is the day immediately preceding the fifth (5th) anniversary of the Agreement Effective
Date).



     “Monthly Payment Date” means the first day of each calendar month.



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



     “Mortgageable Ground Lease” means any lease (a) which is a direct lease granted by the
fee owner of the applicable Project, (b) which has a remaining term, as of the date such Project
becomes a Qualified Unencumbered Project, of not less than thirty (30) years, including extension
options which are exercisable solely at the discretion of the lessee thereunder, (c) under which no
material default has occurred and is continuing, (d) with respect to which a leasehold mortgage may
be granted, and (e) which the Administrative Agent has otherwise reasonably determined is
financeable.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA to which one or more members of the Consolidated Group or any of their ERISA
Affiliates contribute or are obligated to contribute.



     “Negative Pledge” means a Contractual Obligation (other than the Loan Documents and
the documents executed in connection with the Related Facility) that contains a covenant binding on
any owner of a Project that prohibits Liens on any of such owner’s Projects, other than any such
covenant contained in a Contractual Obligation (other than the Loan Documents and the documents
executed in connection with the Related Facility) granting or relating to a particular Lien on a
Project which prohibits further Liens on such Project and on the direct or indirect ownership
interests in the entity owning such Project.



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     “Net HGS Repurchase Price” means, as of any date, the net price that the Wholly-Owned
Subsidiary of Borrower owning the HGS Borrowing Base Project would have received if such
Project had been repurchased by the former owner thereof on the last day of the most recent
Fiscal Quarter for which financial results have been reported pursuant to the exercise of such
former owner’s rights as evidenced by that certain Memorandum of Option dated as of May 1, 2006 and
recorded among the Land Records of Montgomery County in Liber 32247, folio 445 as corrected by
Corrective Memorandum of Option dated as of May 22, 2006 and recorded among such Land Records in
Liber ___, folio ___, after applying all credits that would have then been due to such former
owner on account of rents paid as described in such Memorandum of Option.



     “Net Income” means, with respect to any Person and with respect to any fiscal period,
the net income of that Person for that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied.



     “Net Rentable Area” means with respect to any Project, the floor area of any
buildings, structures or improvements available for leasing to tenants (excluding storage lockers
and parking spaces), as reasonably determined by the Administrative Agent, the manner of such
determination to be consistent for all Projects unless otherwise approved by the Administrative
Agent.



     “Net Worth” means, as of any day, (a) Gross Asset Value as of such date minus
(b) Consolidated Outstanding Indebtedness as of such date.



     “New Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project which first commenced leasing its premises at such Project and
commenced paying rent at any time during the period from the second day of such Fiscal Quarter
through and including the thirtieth (30th) day after the end of such Fiscal Quarter.



     “NOI” means, with respect to any Project for any applicable Fiscal Quarter, the sum of
(i) actual rental income for such Fiscal Quarter attributable to Continuing Tenants and New
Tenants; (ii) with respect to any New Tenant, an imputed amount of net rental income for those days
during such Fiscal Quarter during which such New Tenant was not leasing space and paying rent based
on the per diem net rental income being paid by such New Tenant as of the commencement of its
obligation to pay rent on its lease; (iii) all actual expense reimbursements received from such
tenants for such Fiscal Quarter; and (iv) all actual other income for such Fiscal Quarter
less (A) actual operating expenses for such Fiscal Quarter (excluding from operating
expenses, any allocation of general and administrative expenses related to the operations of the
Consolidated Group and its Investment Affiliates), (B) actual management fees payable with respect
to such Project for such Fiscal Quarter and (C) any actual or imputed rental income for such Fiscal
Quarter attributable to Excluded Tenants, provided, however, that in the case of any such Project
owned by an Investment Affiliate, only the Consolidated Group Pro Rata Share of the foregoing
amount attributable to such Project shall be included in “NOI”.



     “Non-Recourse Indebtedness” means Indebtedness for which the liability of the obligor
thereunder (except with respect to fraud, Hazardous Materials Laws liability and other
customary non-recourse “carve-out” exceptions) either is contractually limited to collateral
securing such Indebtedness or is so limited by operation of Law.



-19-









 





     “Notes” means, collectively, the Line Notes, the Term Notes and the Swing Loan Note.



     “Obligations” means all present and future obligations of every kind or nature of the
Loan Parties at any time and from time to time owed to the Administrative Agent or the Lenders or
any one or more of them, under any one or more of the Loan Documents, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including
obligations of performance as well as obligations of payment, and including interest that
accrues after the commencement of any proceeding under any Debtor Relief Law by or against any
member of the Consolidated Group.



     “Opinions of Counsel” means the favorable written legal opinions of Latham & Watkins
LLP and Venable LLP, counsel to Borrower, in form and substance reasonably satisfactory to the
Administrative Agent.



     “Outstanding Facility Amount” means, as of any date, the sum of the Outstanding Line
Amount and the Outstanding Term Amount, if any.



     “Outstanding Line Amount” means, as of any date, the aggregate of all Line Loans,
Swing Loans and Letter of Credit Exposure, outstanding on such date.



     “Outstanding Term Amount” means, as of any date, the aggregate of all Term Loans, if
any, outstanding on such date.



     “Parent” means BioMed Realty Trust, Inc., a Maryland corporation.



     “Party” means any Person other than the Administrative Agent and the Lenders, which
now or hereafter is a party to any of the Loan Documents.



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereof
established under ERISA.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA and
with respect to the Consolidated Group is maintained by a member of the Consolidated Group or to
which a member of the Consolidated Group contributes or has an obligation to contribute.



     “Percentage” means, with respect to each Lender as of any date, the percentage derived
by dividing that Lender’s then-current Commitment by the then-current Aggregate Commitment. If an
Aggregate Term Commitment is established, a Lender’s “Percentage” of the Aggregate Line Commitment
or the Term Commitment, as of any date, shall be the percentage derived by dividing that portion of
such Lender’s then-current Commitment allocated to the Aggregate Line Commitment or the Aggregate
Term Commitment, as the case may be, by the then-current full Aggregate Line Commitment or full
Aggregate Term Commitment as applicable.



     “Permitted Business Activities” means the acquisition, development, renovation,
ownership, leasing, sale and operation of Life Sciences Buildings (including Projects and
Unstabilized Projects that will be used as Life Sciences Buildings following completion of
development) plus free-



-20-









 







standing parking garages that serve such Life Sciences Buildings, in the
case of the 47 Erie Parking Garage in Cambridge, Massachusetts, the parking garage associated with
the HGS Borrowing Base
Project and any such parking garage that may be acquired as part of a future acquisition of
Life Sciences Buildings, so long as Borrower has obtained the prior written approval of the
Administrative Agent to the inclusion of such garage, such approval not to be unreasonably
withheld, conditioned or delayed.



     “Permitted Liens” is defined in Section 6.14.



     “Person” means any individual or entity, including a trustee, corporation,
limited liability company, general partnership, limited partnership, joint stock company, trust,
estate, unincorporated organization, business association, firm, joint venture, Governmental
Agency, or other entity.



     “Preferred Distributions” means, as of any date with respect to any Person, the
Distributions due and payable to the holders of Preferred Equity in such Person for the most recent
Fiscal Quarter for which financial results have been reported.



     “Preferred Equity” means, with respect to any Person, any form of preferred stock
(whether perpetual, convertible or otherwise) or other ownership or beneficial interest in such
Person that entitles the holders thereof to preferential payment or distribution priority with
respect to dividends, assets or other payments over the holders of any other stock or other
ownership or beneficial interest in such Person.



     “Prime Rate” means a rate per annum equal to the prime rate of interest publicly
announced from time to time by KeyBank or its parent as its prime rate (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate changes. In the
event that there is a successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate, then the term “Prime Rate” as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative
Agent.



     “Project” means any parcel of real property located in the 48 states that comprise the
continental United States of America or in the District of Columbia which is owned, leased or
operated (in each case in whole or in part) by Borrower, or any of its Subsidiaries or Investment
Affiliates and which is either (i) improved with completed Life Sciences Buildings or (ii) held for
the development of Life Sciences Buildings, or (iii) a free-standing parking garage serving such
Life Sciences Buildings in the case of the 47 Erie Parking Garage in Cambridge, Massachusetts, the
parking garage associated with the HGS Borrowing Base Project and any other parking garages
acquired hereafter with the prior approval of the Administrative Agent, as provided above.



     “Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.



     “Qualified Unencumbered Project” means an Income-Producing Project or an Unstabilized
Project that (a) other than as specified below, is wholly owned in fee simple by Borrower or a
Guarantor that is a Wholly-Owned Subsidiary of Borrower, (b) is leased in accordance with
Section 5.17, (c) does not have any title, survey, environmental or other defects that
would



-21-









 







reasonably be expected to materially impair the value, use of or ability to sell or refinance
such Project, (d) is Unencumbered, and (e) would not cause Borrower to be in violation of the
covenants set forth in
Section 5.17. Notwithstanding clause (a) of the preceding sentence, (i) with respect
to the Landmark at Eastview Project and any Exception Project not owned in fee simple, Borrower or
a Guarantor that is a Wholly-Owned Subsidiary of Borrower may own a leasehold interest (as opposed
to a fee simple interest) pursuant to a Mortgageable Ground Lease in such Project, (ii) with
respect to the KOP Project, Borrower or a Guarantor which is a Wholly-Owned Subsidiary of Borrower
(A) owns at least 89% of the equity interests in the Person that owns such KOP Project and (B)
receives as a return on equity or debt 100% of the cash flow from such KOP Project and (iii) with
respect to any Exception Project that is not so wholly owned, Borrower or a Guarantor that is a
Wholly-Owned Subsidiary of Borrower need not own such Exception Project directly, provided that the
Person that owns such an Exception Project has executed a Joinder Agreement and become a Subsidiary
Guarantor.



     “Qualifying Trust Preferred Obligation” means any Indebtedness of the Consolidated
Group which (i) has an original maturity of not less than thirty (30) years, (ii) is non-amortizing
and non-callable, (iii) provides for payment of interest only not more often than quarterly, (iv)
imposes no financial covenants on the Consolidated Group, (v) provides for the subordination of
such Indebtedness to repayment of the Obligations on such terms as are reasonably acceptable to the
Administrative Agent; and (vi) when aggregated with any other such Indebtedness then outstanding
does not exceed five percent (5%) of the then-current Gross Asset Value.



     “Redevelopment Project” means any Project with fifty percent (50%) or more of its Net
Rentable Area vacant and under renovation, reconstruction or other redevelopment.



     “Regulation D” means Regulation D, as at any time amended, of the Board of Governors
of the Federal Reserve System, or any other regulation in substance substituted therefor.



     “Regulations T, U and X” means Regulations T, U and X, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulations in substance substituted
therefor.



     “Related Facility” means the term loan to Borrower made pursuant to the Secured Term
Loan Agreement.



     “Request for Loan” means a written request for a Loan substantially in the form of
Exhibit E, signed by a Senior Officer of Borrower, and properly completed to provide all
information required to be included therein.



     “Requirement of Law” means, as to any Person, the articles or certificate of
incorporation and by-laws or other organizational or governing documents of such Person, and any
Law, or judgment, award, decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to which such Person or any of
its Property is subject.




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     “Requisite Lenders” means (a) as of any date of determination if the Aggregate
Commitment is then in effect, Lenders having in the aggregate 66-2/3% or more of the Aggregate
Commitment then in effect and (b) as of any date of determination if the Aggregate Commitment has
then been suspended or terminated, Lenders holding Advances and participation interests in Letters
of Credit and Swing Loans evidencing in the aggregate 66-2/3% or more of the aggregate Outstanding
Facility Amount.



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



     “Responsible Official” means (a) when used with reference to a Person other than an
individual, any corporate officer of such Person, general partner or managing member of such
Person, corporate officer of a corporate general partner or managing member of such Person, or
corporate officer of a corporate general partner of a partnership that is a general partner of such
Person or corporate managing member of a limited liability company that is a managing member of
such Person, or any other responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. The Administrative Agent and
the Lenders shall be entitled to conclusively rely upon any document or certificate that is signed
or executed by a Responsible Official of Parent or any of its Subsidiaries as having been
authorized by all necessary corporate, partnership and/or other action on the part of Parent or
such Subsidiary.



     “S&P” means Standard & Poor’s Rating Group or its successors.



     “Secured Indebtedness” means any Indebtedness of a Person that is secured by a Lien on
a Project or on any ownership interests in any other Person or on any other assets, provided that
the portion of such Indebtedness included in “Secured Indebtedness” shall not exceed the aggregate
value of the assets securing such Indebtedness at the time such Indebtedness was incurred.



     “Secured Term Loan Agreement” means that certain First Amended and Restated Secured
Term Loan Agreement of even date herewith by and among Borrower, KeyBank and certain other lenders
identified therein, as it may be amended or modified from time to time.



     “Senior Officer” means (a) the chief executive officer, (b) the chairman, (c) the
chief financial officer, (d) the executive vice president or (e) the vice president of finance, of
any of the members of the Consolidated Group or of any of their corporate general partners or
managing members, as applicable.



     “Special LIBOR Circumstance” means the application or adoption after the Closing Date
of any Law or interpretation, or any change therein or thereof, or any change in the interpretation
or administration thereof by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any Lender or its LIBOR



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     Lending Office with any request or directive (whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority.



     “Stabilization” means, as of any date with respect to any Project, that either (i) the
entire Project, or in the case of a Redevelopment Project, the redeveloped portion thereof, was
substantially completed one (1) year or more prior to such date or (ii) the entire Project has, as
of such date, tenants in occupancy of eighty-five percent (85%) or more of the total Net Rentable
Area thereof, each of which is either paying rent or is obligated to begin paying rent not later
than ninety (90) days after the commencement date of such tenant’s lease.



     “Subordinated Debt” means Indebtedness, including Qualifying Trust Preferred
Obligations, which is or has been subordinated to repayment of the Obligations on such terms as are
reasonably acceptable to the Administrative Agent.



     “Subsidiary” means, as of any date of determination and with respect to any Person,
(a) any corporation, limited liability company, partnership or other Person (whether or not, in any
case, characterized as such or as a joint venture), whether now existing or hereafter organized or
acquired: (i) in the case of a corporation, of which a majority of the securities having ordinary
voting power for the election of directors or other governing body (other than securities having
such power only by reason of the happening of a contingency) are at the time beneficially owned by
such Person and/or one or more Subsidiaries of such Person, or (ii) in the case of a partnership or
limited liability company, of which a majority of the partnership, membership or other ownership
interests are at the time beneficially owned by such Person and/or one or more of its Subsidiaries;
and (b) any other Person the accounts of which are consolidated with the accounts of the designated
parent.



     “Subsidiary Guarantor” means, as of any date, any of those Subsidiaries that are a
party to the Guaranties.



     “Sun Campus Project” means that certain Project located in Newark, California
consisting of ten (10) buildings comprising a total of approximately 1,400,000 square feet of
primarily office space, plus additional land which can support the future development of another
400,000 square feet of space being purchased by Borrower from Sun Microsystems, Inc. and leased
back by Sun Microsystems, Inc. under short-term leases. An agreed allocation of Borrower’s
aggregate acquisition costs among such buildings is attached hereto as Exhibit H and made a
part hereof.



     “Swap Agreement” means a written agreement between Borrower and one or more financial
institutions, including without limitation, KeyBank, providing for “swap”, “cap”, “collar” or other
interest rate protection with respect to any Indebtedness.



     “Swing Loan Commitment” means $75,000,000 of the then-effective Aggregate Line
Commitment, subject to possible reduction as provided for in Section 2.7 in the case of any
reductions in the Aggregate Line Commitment made by Borrower.



     “Swing Loan Lender” means KeyBank, in its capacity as the Swing Loan Lender under this
Agreement.



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     “Swing Loan Note” means the note described in Section 2.5.



     “Swing Loans” means those Loans described in Section 2.5 that are made or to
be made by the Swing Loan Lender and evidenced by the Swing Loan Note.



     “Term Advance” means any Advance made from time to time to Borrower hereunder, on a
non-revolving basis, by a Term Lender.



     “Term Commitment” means that portion of any increase in the Aggregate Commitment under
Section 2.8(a) which is so designated by Borrower under Section 2.8(b) and accepted
by the applicable Subsequent Lenders and/or Increasing Lenders.



     “Term Facility” means the Term Loans made available to Borrower hereunder from time to
time by the Lenders under their Term Commitments.



     “Term Lender” means a Subsequent Lender or an Increasing Lender which has agreed to
provide all or a portion of its increased Commitment as a Term Commitment.



     “Term Loan” means a Loan to Borrower under the Term Commitment, if established, funded
by Term Advances from the Term Lenders made pursuant to Section 2.1(b).



     “Term Loan Borrowing Date” is defined in Section 2.1(b).



     “Term Note” means any of the promissory notes made by Borrower to a Term Lender
evidencing Term Advances under that Term Lender’s Percentage of the Aggregate Term Commitment,
substantially in the form of Exhibit D, as modified to apply to the Term Facility either as
originally executed or as the same may from time to time be supplemented, modified, amended,
renewed or extended.



     “Total Unsecured Indebtedness” means, as of any date, (A) Consolidated Outstanding
Indebtedness (including without limitation all Indebtedness under this Agreement and all
Indebtedness represented by “Exchangeable Senior Notes” issued by members of the Consolidated
Group) less (B) all Secured Indebtedness of the Consolidated Group (including without limitation
all Indebtedness under the Related Facility) less (C) the Consolidated Group Pro Rata Share of all
Secured Indebtedness of Investment Affiliates and less (D) Qualifying Trust Preferred Obligations.



     “to the best knowledge of” means, when modifying a representation, warranty or other
statement of any Person, that the fact or situation described therein is known by the Person (or,
in the case of a Person other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a reasonable Person
in similar circumstances would have done) would have been known by the Person (or, in the case of a
Person other than a natural Person, would have been known by a Responsible Official of that
Person).



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     “type”, when used with respect to any Loan or Advance, means the designation of
whether such Loan or Advance (i) is being made under the Line Facility or the Term Facility and
(ii) is an Alternate Base Rate Loan or Advance or a LIBOR Rate Loan or Advance.



     “Unencumbered” means, with respect to any property, that such property (a) is not
subject to any Lien other than Permitted Liens which do not secure Indebtedness, (b) is not subject
to any Negative Pledge and (c) is not held by a Person any of whose direct or indirect equity
interests are subject to a Lien or Negative Pledge.



     “Unencumbered Pool” means, as of any date of determination, (a) the Initial
Unencumbered Projects, plus (b) each other Qualified Unencumbered Project which has been
added to the Unencumbered Pool pursuant to Section 2.11 as of such date, minus (c)
any Project which has been removed from the Unencumbered Pool pursuant to Section 2.11 as
of such date, (d) minus any
Project which has been removed from the Unencumbered Pool pursuant to the next sentence hereof
as of such date (and plus any Qualified Unencumbered Project which has been added back into
the Unencumbered Pool pursuant to the next sentence hereof). In the event that all or any material
portion of an Income-Producing Project then within the Unencumbered Pool shall be damaged or taken
by condemnation, then such Project shall no longer be a part of the Unencumbered Pool unless and
until any damage to such Project is repaired or restored, such Income-Producing Project becomes
fully operational and the Administrative Agent shall receive evidence satisfactory to the
Administrative Agent of the Adjusted Current Value and NOI of such Income-Producing Project
following such repair or restoration. In the event that all or any material portion of an
Unstabilized Project then within the Unencumbered Pool shall be damaged or taken by condemnation,
then the Administrative Agent may reduce the amount of the Borrowing Base in an amount which the
Administrative Agent reasonably deems appropriate in light of such damage or condemnation; or may
remove such Unstabilized Project from the Unencumbered Pool unless and until such Unstabilized
Project is repaired or restored to the Administrative Agent’s reasonable satisfaction.



     “Unsecured Debt Service Amount” means, as of any date, an amount equal to one year of
simple interest on an amount equal to the then-current Total Unsecured Indebtedness (excluding
Subordinated Debt) at an interest rate equal to the then-current LIBOR Rate for a LIBOR Period of
one (1) month.



     “Unsecured Debt Service Coverage Ratio” means, as of any date, (a) an amount equal to
Adjusted Unencumbered NOI divided by (b) the Unsecured Debt Service Amount.



     “Unstabilized Project” means, as of any date, either (i) a Redevelopment Project or
(ii) a Project that is currently under construction or has been recently completed (as to its
initial construction), but which in either case (i) or (ii) above, has not yet reached
Stabilization. Once a Project has reached Stabilization, whether by passage of time or leasing, it
shall not thereafter qualify as an Unstabilized Project unless it subsequently becomes a
Redevelopment Project.



     “Unused Fee Percentage” means, with respect to any day during a calendar quarter prior
to the Maturity Date with respect to the Line Facility, 0.15% per annum.



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     “Wholly-Owned Subsidiary” means, with respect to any Person, a Subsidiary of such
Person, 100% of the capital stock or other equity interest of which is owned, directly or
indirectly, by such Person.



     1.2 Use of Defined Terms. Any defined term used in the plural shall refer to all
members of the relevant class, and any defined term used in the singular shall refer to any one or
more of the members of the relevant class.



     1.3 Accounting Terms. All accounting terms not specifically defined in this Agreement
shall be construed in conformity with, and all financial data required to be submitted by this
Agreement shall be prepared in conformity with, Generally Accepted Accounting Principles applied on
a consistent basis, except as otherwise specifically prescribed herein. In the event that
Generally Accepted Accounting Principles change during the term of this Agreement such that the
covenants contained in Sections 6.5 through 6.15, inclusive, would then be
calculated in a different manner or with different components, (a) Borrower and the Lenders agree
to amend this Agreement in such respects as are necessary to conform those covenants as criteria
for evaluating Borrower’s financial condition to substantially the same criteria as were effective
prior to such change in Generally Accepted Accounting Principles and (b) Borrower shall be deemed to be in compliance with the
covenants contained in the aforesaid Sections if and to the extent that Borrower would have been in
compliance therewith under Generally Accepted Accounting Principles as in effect immediately prior
to such change, but shall have the obligation to deliver each of the materials described in
Article 7 to the Administrative Agent and the Lenders, on the dates therein specified, with
financial data presented in a manner which conforms with Generally Accepted Accounting Principles
as in effect immediately prior to such change.



     1.4 Exhibits and Schedules. All Exhibits and Schedules to this Agreement, either as
originally existing or as the same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed on any Schedule shall be deemed
disclosed on all Schedules.



     1.5 Miscellaneous Terms. The term “or” is disjunctive; the term “and” is conjunctive.
The term “shall” is mandatory; the term “may” is permissive. Masculine terms also apply to
females; feminine terms also apply to males. The term “including” is by way of example and not
limitation.



ARTICLE 2




LOANS




     2.1 Loans General.



          (a) Subject to the terms and conditions set forth in this Agreement, at any time and from time
to time from the Closing Date through the last Business Day immediately preceding the Maturity Date
with respect to the Line Facility, each Line Lender shall make, on a pro rata basis according to
that Lender’s Percentage of the then-current Aggregate Line Commitment, its share of a Line Loan to
Borrower in such amounts as Borrower may request that do not result in (A) the




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Outstanding Line Amount (after giving effect to all amounts requested thereunder) exceeding the Aggregate Line
Commitment or (B) the Outstanding Facility Amount (after giving effect to all amounts requested
thereunder) being in excess of the Facility Availability Amount, and provided that in all events no
Default or Event of Default shall have occurred and be continuing and all conditions to Advances
hereunder shall have been satisfied. Subject to the limitations set forth herein, Borrower may
borrow, repay and reborrow under the Line Facility without premium or penalty.




          (b) Subject to the terms and conditions set forth in this Agreement, on the date on which any
Term Commitment or increase in a Term Commitment becomes effective (a “Term Loan Borrowing
Date”) , the Term Lender providing such Term Commitment or increase shall make a Term Advance
to Borrower in the full amount of such Term Commitment or increase, so long as, after giving effect
to the funding of all Term Advances and other Advances requested to be disbursed on such Term Loan
Borrowing Date, the Outstanding Facility Amount will not exceed the Facility Availability Amount
and provided that in all events no Default or Event of Default shall have occurred and be
continuing and all conditions to Advances hereunder shall have been satisfied. Borrower may not
reborrow all or any portion of any Term Loans once repaid.




          (c) The obligation of each Lender to make Advances (including Swing Loan Advances) in
accordance with its respective Commitments is several, and not joint and several; and
no Lender shall be obligated to advance more than its respective Commitment, notwithstanding
the default of any other Lender.




          (d) Each Loan shall be made pursuant to a Request for Loan which shall specify the requested
(i) date of such Loan (which must be a Banking Day), (ii) type of Loan, (iii) amount of such Loan,
and (iv) in the case of a LIBOR Rate Loan, LIBOR Period for such Loan.




          (e) Promptly following receipt of a Request for Loan, the Administrative Agent shall (by the
end of business on the same day that the request was received) notify each Lender of the date and
type of the Loan, the applicable LIBOR Period, and that Lender’s Percentage of the Loan. Not later
than 1:00 p.m., Cleveland time, on the date specified for any Loan (which must be a Banking Day),
each Lender shall make its Percentage of the Loan in immediately available funds available to the
Administrative Agent at the Administrative Agent’s Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Advances shall be credited on that date
in immediately available funds to the Designated Deposit Account.




          (f) Unless the Requisite Lenders otherwise consent, each Alternate Base Rate Loan shall be not
less than $1,000,000, each LIBOR Rate Loan shall be not less than $1,000,000 and all Loans shall be
in an integral multiple of $250,000.




          (g) The Advances made by each Lender under its Line Commitment shall be evidenced by that
Lender’s Line Note.




          (h) The Advances made by each Term Lender under its Term Commitment shall be evidenced by that
Lender’s Term Note.




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          (i) A Request for Loan shall be irrevocable upon the Administrative Agent’s first notification
thereof.




          (j) If no Request for Loan has been made within the requisite notice periods set forth in
Section 2.2 or 2.3 prior to the end of the LIBOR Period for any LIBOR Rate Loan,
then on the last day of such LIBOR Period, such LIBOR Rate Loan shall be automatically converted
into an Alternate Base Rate Loan in the same amount.




     2.2 Alternate Base Rate Loans. Each request by Borrower for an Alternate Base Rate
Loan shall be made pursuant to a Request for Loan received by the Administrative Agent, at the
Administrative Agent’s Office, not later than 1:00 p.m., Cleveland time, on the Banking Day
immediately prior to the date of the requested Alternate Base Rate Loan. All Loans shall
constitute Alternate Base Rate Loans unless properly designated as a LIBOR Rate Loan pursuant to
Section 2.3.



     2.3 LIBOR Rate Loans.



          (a) Each request by Borrower for a LIBOR Rate Loan shall be made pursuant to a Request for
Loan received by the Administrative Agent, at the Administrative Agent’s Office, not later than
1:00 p.m., Cleveland time, at least three (3) Banking Days before the first day of the applicable
LIBOR Period.




          (b) On the date which is two (2) Banking Days before the first day of the applicable LIBOR
Period, the Administrative Agent shall confirm its determination of the
applicable LIBOR Rate (which determination shall be conclusive in the absence of manifest
error) and promptly shall give notice of the same to Borrower and the Lenders.




          (c) Unless the Administrative Agent and the Requisite Lenders otherwise consent, there shall
be no more than eight (8) LIBOR Periods in effect at any one time.




          (d) No LIBOR Rate Loan may be requested or continued during the continuation of a Default or
Event of Default.




          (e) Nothing contained herein shall require any Lender to fund any LIBOR Rate Advance in the
London interbank market.




     2.4 [Intentionally Omitted.]



     2.5 Swing Loan Commitments.



          (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees
to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time
to time between the Closing Date and the date which is thirty (30) Banking Days prior to the
Maturity Date upon notice by Borrower to the Swing Loan Lender given in accordance with this
Section 2.5 such sums as are requested by Borrower for the purposes set forth in
Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any
one time outstanding (after giving effect to all amounts requested thereunder) being in excess of
the Swing




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Loan Commitment, or (ii) the Outstanding Line Amount (after giving effect to all Swing
Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the
Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in
excess of the Facility Availability Amount. Swing Loans shall constitute “Line Loans” for all
purposes hereunder, but shall not be considered the utilization of a Lender’s Percentage of the
Aggregate Line Commitment. The funding of a Swing Loan hereunder shall constitute a representation
and warranty by Borrower that all of the conditions set forth in Article 8 have been
satisfied on the date of such funding (other than advance notice requirements).




          (b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in
substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this
Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the
order of the Swing Loan Lender in such amount as may be outstanding from time to time thereunder
and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender
to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of
receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s
record reflecting the making of such Swing Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record
shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan
Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan
Lender’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under
the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.




          (c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate
Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the
Swing Loan Lender a Request for Loan no later than 2:00 p.m. (Cleveland time) on
the requested date specifying the amount of the requested Swing Loan. Each such Request for
Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing
Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be
an Alternate Base Rate Loan that shall bear interest at the Alternate Base Rate. The proceeds of
the Swing Loan will be made available by the Swing Loan Lender to Borrower at the Administrative
Agent’s Office (on the same Banking Day that the Request for Loan was received, if received prior
to the deadline stated above on such day) by crediting the account of Borrower at such office with
such proceeds.




          (d) The Swing Loan Lender shall within five (5) Banking Days after the date a Swing Loan is
made, request each Lender, including the Swing Loan Lender, to make a Line Loan pursuant to
Section 2.1(a) in an amount equal to such Lender’s Percentage of the amount of the Swing
Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and
directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the
Administrative Agent for the benefit of the Swing Loan Lender pursuant to this Section
2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the
events described in Section 9.1(j) shall have occurred (in which event the procedures of
Section 2.5(e) shall apply), each Lender shall make the proceeds of its Line Loan available
to the Swing Loan Lender for the account of the Swing Loan Lender at the Administrative Agent’s
Office prior to 1:00




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p.m. (Cleveland time) in funds immediately available no later than the next
Banking Day after the date such notice is given just as if the Lenders were funding an Alternate
Base Rate Loan directly to Borrower, so that thereafter such Obligations shall be evidenced by the
Line Notes. The proceeds of such Line Loan shall be immediately applied to repay the Swing Loans.




          (e) If prior to the making of a Line Loan pursuant to Section 2.5(d) by all of the
Lenders, one of the events described in Section 9.1(j) shall have occurred, each Lender
will, on the date such Line Loan pursuant to Section 2.5(d) was to have been made, purchase
an undivided participating interest in the Swing Loan in an amount equal to its Percentage of such
Swing Loan. Each Lender will immediately transfer to the Swing Loan Lender in immediately
available funds the amount of its participation and upon receipt thereof the Swing Loan Lender will
deliver to such Lender a Swing Loan participation certificate dated the date of receipt of such
funds and in such amount.




          (f) Whenever at any time after the Swing Loan Lender has received from any Lender such
Lender’s participating interest in a Swing Loan, the Swing Loan Lender receives any payment on
account thereof, the Swing Loan Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted in the case of interest payments to reflect the period of time
during which such Lender’s participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Loan Lender is required to be returned,
such Lender will return to the Swing Loan Lender any portion thereof previously distributed by the
Swing Loan Lender to it.




          (g) Each Lender’s obligation to fund a Line Loan as provided in Section 2.5(d) or to
purchase participating interests pursuant to Section 2.5(e) shall be absolute and
unconditional and shall not be affected by any circumstance (except only the failure of the Swing
Loan Lender to make the request described in Section 2.5(d)), including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender or
Borrower may have against the Swing Loan Lender, Borrower or anyone else for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in
the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group; (iv) any breach of
this Agreement or any of the other Loan Documents by any Lender; (v) the failure to satisfy all of
the conditions to disbursement set forth in Article 8; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing. No such funding or
purchase by a Lender under the preceding sentence shall be deemed to be a waiver of any claim that
a Lender may otherwise have against the Administrative Agent pursuant to the terms of this
Agreement. The provisions of Section 2.9 shall apply to any Lender which fails or refuses
to make a Line Loan or fund its participation as provided herein. Each Swing Loan, once so
converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Line
Loan made by each Lender under its Commitment.




     2.6 Letters of Credit.



          (a) Subject to the terms and conditions set forth in this Agreement, at any time and from time
to time from the Closing Date through the day that is thirty (30) Banking Days prior to the
Maturity Date, the Administrative Agent (including any successor Administrative Agent that




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takes over such position from KeyBank in accordance with the terms hereof) shall issue such Letters of
Credit as Borrower may request, for the purposes provided in Section 5.9, upon the delivery
of a written request in the form of Exhibit G hereto (a “Letter of Credit Request”) to the
Administrative Agent, provided that (i) upon issuance of such Letter of Credit, the Letter of
Credit Exposure shall not exceed $75,000,000, (ii) the Outstanding Line Amount (after giving effect
to all Letters of Credit requested thereunder) shall not exceed the Aggregate Line Commitment,
(iii) the Outstanding Facility Amount (after giving effect to all letters of credit requested
thereunder) shall not exceed the Facility Availability Amount, (iv) the conditions set forth in
Article 8 shall have been satisfied, and (v) in no event shall any amount drawn under a
Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of
Credit. Unless the Administrative Agent otherwise consents, the term of any Letter of Credit shall
not exceed the lesser of twelve (12) months or a period of time commencing on the issuance of the
Letter of Credit and ending on the Banking Day which is immediately prior to the Maturity Date,
provided that any such Letter of Credit may contain an automatic extension or renewal clause, so
long as the final expiration date of such Letter of Credit shall not be later than the Banking Day
immediately preceding the Maturity Date. The amount available to be drawn under any Letter of
Credit shall reduce on a dollar for dollar basis the amount available to be drawn under the Line
Commitments as a Line Loan.




          (b) Each Letter of Credit Request shall be submitted to the Administrative Agent at least
three (3) Banking Days prior to the date upon which the requested Letter of Credit is to be issued.
Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such
Letter of Credit shall be used (which purpose shall be in accordance with the terms of Section
5.9), and (ii) a certification by a Responsible Official of Borrower that Borrower is and will
be in compliance with all covenants under the Loan Documents after giving effect to the issuance of
such Letter of Credit. Borrower shall further deliver to the Administrative Agent such additional
applications and documents as the Administrative Agent may require, in conformity with the then
standard practices of its letter of credit department in connection with the issuance of such
Letter of Credit; provided that in the event of any conflict, the terms of this Agreement shall
control.




          (c) The Administrative Agent shall, if it approves of the content of the Letter of Credit
Request (which approval shall not be unreasonably withheld, conditioned or delayed), and subject to
the conditions set forth in this Agreement, issue the Letter of Credit. Each Letter of Credit
shall be in form and substance satisfactory to the Administrative Agent in its reasonable
discretion. Upon issuance of a Letter of Credit, the Administrative Agent shall promptly
notify the Lenders of such issuance and shall provide copies of each Letter of Credit Request and
the corresponding Letter of Credit to any Lender which requests same.




          (d) Upon the issuance of a Letter of Credit, each Lender shall be deemed to have purchased a
participation therein from the Administrative Agent in an amount equal to its respective Percentage
of the amount of such Letter of Credit, provided that no Lender shall be obligated to transfer
funds in such amount to the Administrative Agent at such time.




          (e) Upon the issuance of each Letter of Credit, Borrower shall pay to the Administrative Agent
(i) for its own account, an issuance fee equal to the greater of (A) $1,500 or (B) one eighth of
one percent (0.125%) per annum to be calculated on the face amount of each Letter of Credit for the
stated duration thereof, based on the actual number of days and using a 360-




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day year basis, payable by Borrower on the issuance of each such Letter of Credit and on the date of any increase therein
or extension thereof, plus all reasonable out of pocket costs and the Administrative Agent’s
standard charges of issuing, amending and servicing such Letter of Credit and processing draws
thereunder, and (ii) for the accounts of the Lenders in accordance with their Percentages in such
Letter of Credit, a “Letter of Credit Fee” calculated at the rate of the Applicable Margin per
annum in effect from time to time with respect to LIBOR Rate Loans on the face amount of such
Letter of Credit during the period from and including the issuance date of such Letter of Credit to
its expiration or termination date. The Letter of Credit Fee payable to the Lenders shall be
computed on the basis of a year of 360 days and shall be payable quarterly in arrears as of the
first day of each calendar quarter (commencing with the first calendar quarter following the date
of issuance of the Letter of Credit) and on the Maturity Date with respect to the Line Facility.
Following its receipt of any such Letter of Credit Fee, Administrative Agent shall promptly pay to
each Lender its pro rata share of such Letter of Credit Fee.




          (f) If and to the extent that any amounts are drawn upon any Letter of Credit, the amounts so
drawn shall, from the date of payment thereof by the Administrative Agent to either the date of
reimbursement thereof by Borrower or repayment through a borrowing by Borrower of a Line Loan, bear
interest at the Alternate Base Rate. Upon the receipt by the Administrative Agent of any draw or
other presentation for payment of a Letter of Credit and the payment by the Administrative Agent of
any amount under a Letter of Credit which is not reimbursed by Borrower within twenty four (24)
hours of receipt of notice from the Administrative Agent of such draw, the Administrative Agent
shall, without further notice to or the consent of Borrower, direct the Lenders to fund to the
Administrative Agent in accordance with Section 2.9 on or before 1:00 p.m. (Cleveland time)
on the next Banking Day following Borrower’s failure to reimburse the Administrative Agent, their
respective Percentage of the amount so paid by the Administrative Agent as a Line Loan. The
proceeds of such funding shall be paid to the Administrative Agent to reimburse the Administrative
Agent for the payment made by it under the Letter of Credit and shall thereafter be evidenced by
the Line Notes. The provisions of Section 2.9 shall apply to any Lender or Lenders failing
or refusing to fund its Percentage of any such draw. The Lenders shall be required to make such
Line Loans regardless of whether all of the conditions to disbursement set forth in Article
8 have been satisfied, provided that the making of such Line Loans shall not be deemed to be a
waiver of any claim that a Lender may otherwise have against the Administrative Agent pursuant to
this Agreement.




          (g) If, following a draw under any Letter of Credit, but prior to the making of a Line Loan
with respect thereto under Section 2.6(f) above, one of the events described in Section
9.1(j) shall have occurred, each Lender will promptly pay to the Administrative Agent
in immediately available funds its Percentage of the amount drawn under such Letter of Credit, and
upon receipt thereof the Administrative Agent will
deliver to such Lender a Letter of Credit participation certificate dated the date of receipt of such funds and in such amount funded by such
Lender. The provisions of Section 2.9 shall apply to any Lender which fails or refuses to
fund its participation as provided herein.




          (h) Whenever at any time after the Administrative Agent has received from any Lender such
Lender’s payment of funds for its participating interest under a Letter of Credit, the
Administrative Agent receives any payment on account thereof, the Administrative Agent will



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distribute to such Lender its participating interest in such amount (appropriately adjusted in the
case of interest payments to reflect the period of time during which such Lender’s participating
interest was outstanding and funded); provided, however, that in the event that such payment (or
portion thereof) received by the Administrative Agent is required to be returned, such Lender will
return to the Administrative Agent any pro rata portion thereof previously distributed by the
Administrative Agent to it.




          (i) Unless otherwise approved by the Administrative Agent, each Letter of Credit shall be in
an amount of not less than $100,000.




          (j) The issuance of any supplement, modification, amendment, renewal or extension to or of any
Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of
Credit.




          (k) The obligations of Borrower to the Lenders and the Administrative Agent to reimburse
drawings under Letters of Credit under this Agreement shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever and irrespective of any setoff, counterclaim or
defense to payment which Borrower may have or have had against the Administrative Agent or any of
the Lenders (except such as may arise out of the Administrative Agent’s or any Lender’s gross
negligence or willful misconduct), including, without limitation, any setoff, counterclaim or
defense based upon or arising out of the following circumstances: (i) any improper use which may be
made of any Letter of Credit or any improper acts or omissions of any beneficiary or transferee of
any Letter of Credit in connection therewith; (ii) the existence of any claim, set off, defense or
any right which Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or persons or entities for whom any such beneficiary or any such transferee may
be acting) or the Lenders (other than the defense of payment to the Lenders in accordance with the
terms of this Agreement) or any other person, whether in connection with any Letter of Credit, this
Agreement, any other Loan Document, or any unrelated transaction; (iii) any statement or any other
documents presented under any Letter of Credit proving to be insufficient, forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in any respect
whatsoever; (iv) any breach of any agreement between any Borrower and any beneficiary or transferee
of any Letter of Credit; (v) any irregularity in the transaction with respect to which any Letter
of Credit is issued, including any fraud by the beneficiary or any transferee of such Letter of
Credit; and (vi) payment by the Administrative Agent under any Letter of Credit against
presentation of a sight draft or a certificate which does not comply with the terms of such Letter
of Credit, provided that such payment shall not have constituted gross negligence or willful
misconduct on the part of the Administrative Agent.




          2.7 Voluntary Reduction of Aggregate Line Commitment. Borrower shall have the right,
at any time and from time to time, without penalty or charge, upon at least three (3) Banking Days’
prior written notice by a Responsible Official of Borrower to the Administrative Agent, voluntarily
to reduce, permanently and irrevocably, in aggregate principal amounts in an integral multiples of
$1,000,000 but not less than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of the Aggregate Line Commitment; provided that in no event shall the Aggregate Line
Commitment be reduced to an amount less than $100,000,000 (unless terminated in




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its entirety). The Administrative Agent shall promptly notify the Lenders of any reduction or termination of the
Aggregate Line Commitment under this Section. Any reduction of the Aggregate Line Commitment shall
be allocated pro rata among the Line Lenders in accordance with their respective Percentages of the
Aggregate Line Commitment. Upon any such reduction of the Aggregate Commitment, the Swing Loan
Lender and the Administrative Agent may each elect, at its option, to reduce the Swing Loan
Commitment or the maximum amount of Letter of Credit Exposure pursuant to Section 2.6(a),
as the case may be, by the same percentage as the percentage reduction in the Aggregate Line
Commitment.




     2.8 Increase in Aggregate Commitment.



          (a) At any time after the Closing Date of this Agreement, the Administrative Agent may in its
discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the
request of Borrower so long as the conditions set forth below are satisfied), without the consent
of the Lenders (except as specified in this Section 2.8), from time to time at the request
of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each
a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing
Lender”), subject to the following conditions:




               (i) each Subsequent Lender is an Eligible Assignee;



               (ii) except to the extent Borrower elects to designate all or a portion of such increase in
the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower
executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its
Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the
amount of its new, increased Commitment;



               (iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature
page to this Agreement, and each Increasing Lender executes and delivers to the Administrative
Agent a new signature page to this Agreement reflecting its increased Commitment;



               (iv) after giving effect to the admission of any Subsequent Lender or the increase in the
Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;



               (v) no Event of Default exists; and



               (vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which
consent such Lender may withhold in its sole and absolute discretion.


After the admission of any Subsequent Lender or increase in the Commitment of any Increasing
Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of
the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current
Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised
Schedule 1.1).




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          (b) Borrower may, at its option, elect to designate all, or any portion of at least
$50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term
Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the
Aggregate Commitment after the Term Facility has been established), provided that each Subsequent
Lender and Increasing Lender providing the Commitments so designated has agreed in writing to
provide a Term Commitment or increase its Term Commitment. Any such election must be made by
written notice to the Administrative Agent given along with Borrower’s request for an increase in
the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase
Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term
Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each
such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the
Aggregate Term Commitment.




     2.9 Administrative Agent’s Right to Assume Funds Available for Loans. Unless the
Administrative Agent shall have been notified by any Lender no later than 1:00 p.m., Cleveland time
on the Banking Day of the proposed funding by the Administrative Agent of any Loan that such Lender
does not intend to make available to the Administrative Agent such Lender’s portion of the total
amount of such Loan, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of the Loan and the Administrative Agent may, in
reliance upon such assumption, make available to Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower based on such assumption and such
corresponding amount is not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender plus an administrative fee of $200. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent promptly shall
notify Borrower and Borrower shall pay such corresponding amount (but not the administrative fee)
to the Administrative Agent. The Administrative Agent also shall be entitled to recover from such
Lender or Borrower interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i)
from such Lender, the daily Federal Funds Effective Rate or (ii) from Borrower, at the applicable
rate for such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the Administrative Agent or Borrower may
have against any Lender as a result of any default by such Lender hereunder.



     2.10 Extension of Line Facility Maturity Date. Borrower shall have the one time right
and option to extend the Maturity Date with respect to the Line Facility to August 1, 2012 (which
is the day immediately preceding the fifth (5th) anniversary of the Agreement Effective Date) upon
satisfaction of the following conditions precedent, which must be satisfied prior to the
effectiveness of such extension of the Maturity Date:



          (a) Extension Request. Borrower shall deliver written notice of such request (the
“Extension Request”) to the Administrative Agent not earlier than one hundred fifty (150) days and
not later than the date which is ninety (90) days prior to the initial Maturity Date.




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          (b) Payment of Extension Fee. The Borrower shall pay to the Administrative Agent, at
the time of the Extension Request, for the benefit of the Lenders holding Line Commitments an
extension fee equal to fifteen one-hundredths of one percent (0.15%) of the then-current Aggregate
Line Commitment. Following its receipt of the Extension Fee, Administrative Agent shall promptly
pay to each Lender its pro rata share of such Extension Fee.




          (c) No Default. On the date the Extension Request is given and on the initial
Maturity Date there shall exist no Event of Default.




          (d) Representations and Warranties. On the date of such Extension Request Borrower
shall deliver to the Administrative Agent a Certificate of a Responsible Official signed by a
Senior Officer on behalf of Borrower stating that the representations and warranties contained in
Article 4 (other than (i) representations and warranties which expressly speak as of a
particular date or are no longer true and correct as a result of a change which is not in violation
of this Agreement and (ii) as otherwise disclosed by Borrower and approved in writing by the
Requisite Lenders) will be true and correct in all material respects, both immediately before and
after giving effect to the Extension Request, as though such representations and warranties were
made on and as of that date.



Nothing in this Section 2.10 shall give Borrower any right to extend the Maturity Date with
respect to the Term Facility.




     2.11 Unencumbered Pool. Borrower may at any time add a Qualified Unencumbered Project
to the Unencumbered Pool pursuant to this Section 2.11, which process shall be initiated by
delivery by Borrower to the Administrative Agent (which the Administrative Agent shall promptly
distribute to the Lenders) of a description, in reasonable detail, of the Qualified Unencumbered
Project, the most recent year operating income statement related thereto (to the extent available),
cash flow projections for such property for the next twelve (12) months, a rent roll for such
Project, and a certification of a Senior Officer of Borrower that Borrower has obtained a
reasonably current (but in no event older than twelve months) Phase I environmental site assessment
prepared by a qualified independent expert with respect to such Qualified Unencumbered Project
which provides that there are no recognized environmental conditions thereon that require further
action. If any such Project to be added to the Unencumbered Pool hereafter is not wholly-owned in
fee simple by Borrower or a Wholly-Owned Subsidiary of Borrower and Borrower is seeking approval
for the inclusion of such Project in the Unencumbered Pool as an Exception Project, Borrower must
also deliver either the agreement creating the leasehold interest in such Project or the
organizational documents for the direct or indirect owners of such Project, together with any
related resolutions and consents, as the case may be. The Administrative Agent shall determine, in
its reasonable discretion, whether or not such agreement is a Mortgageable Ground Lease or whether
or not such organizational documents, resolutions and consents properly authorize the owner of such
Project to execute the Joinder Agreement, as the case may be. Upon the satisfaction of all
criteria specified in this Agreement, such Qualified Unencumbered Project presented by Borrower for
inclusion in the Unencumbered Pool shall be deemed added to and to constitute part of the
Unencumbered Pool and the Administrative Agent shall so notify Borrower and the Lenders in writing.
Borrower may remove a property from the Unencumbered Pool by delivery to the Administrative Agent
(for distribution to the Lenders) of a written notice to that effect, accompanied by a Certificate
of a Senior Officer of Borrower setting forth the revised Borrowing Base resulting from such
removal,



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which removal shall be effective on the third (3rd) day after the date of such notice.
The Administrative Agent may, upon five (5) Banking Days’ notice to Borrower, remove any Project
from the Unencumbered Pool which at any time fails to continue to meet the requirements of a
Qualified Unencumbered Project , as specified in this Agreement. Upon the effective date of
any such removal under either of the two preceding sentences, the Borrowing Base shall be reduced
and Borrower shall make any principal prepayment that may be required under Section 3.1(e)
as a result of such reduction in the Borrowing Base. Upon any removal of a Project from the
Unencumbered Pool by Borrower or the Administrative Agent pursuant to this Section 2.11,
the applicable Subsidiary Guarantor shall be released from all obligations under the Subsidiary
Guaranty and the Administrative Agent shall provide to Borrower, on behalf of itself and the
Lenders, a written acknowledgement thereof.




ARTICLE 3




PAYMENTS AND FEES




     3.1 Principal and Interest.



          (a) Interest shall be payable on the outstanding daily unpaid principal amount of each Advance
from the date thereof until payment in full is made and shall accrue and be payable at the rates
set forth or provided for herein before and after Default, before and after maturity, before and
after judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law, with interest on overdue interest at the Default Rate in each case to the fullest extent
permitted by applicable Laws. Interest on LIBOR Rate Loans shall be computed on a 360 day year,
and actual days elapsed. Interest on Alternate Base Rate Loans shall be computed on a 365 or 366
day year, as applicable, and actual days elapsed.




          (b) Interest accrued on each Alternate Base Rate Loan shall be due and payable on each Monthly
Payment Date or at maturity, whether by acceleration or otherwise. Except as otherwise provided in
Section 3.6, the unpaid principal amount of any Alternate Base Rate Loan shall bear
interest at a fluctuating rate per annum equal to the Alternate Base Rate. Each change in the
interest rate under this Section 3.1(b) due to a change in the Alternate Base Rate shall
take effect simultaneously with the corresponding change in the Alternate Base Rate.




          (c) Interest accrued on each LIBOR Rate Loan shall be due and payable on each Monthly Payment
Date or at maturity, whether by acceleration or otherwise. Except as otherwise provided in
Section 3.6, the unpaid principal amount of any LIBOR Rate Loan shall bear interest at a
rate per annum equal to the LIBOR Rate for the applicable LIBOR Period.




          (d) In the event that any additional interest becomes due and payable for any period with
respect to a Loan as a result of the Applicable Margin being changed due to any change in the
Leverage Ratio, and the interest for such period has previously been paid by Borrower, Borrower
shall pay to the Administrative Agent for the account of the Lenders the amount of such increase
within ten (10) days of demand.




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          (e) If not sooner paid, the principal Indebtedness evidenced by the Notes shall be payable as
follows:




               (i) the amount, if any, by which the principal Indebtedness evidenced by the Notes (after
giving effect to all amounts requested thereunder) plus the Letter of Credit Exposure, at any time
exceeds the Facility Availability Amount shall be payable immediately upon demand and after the
Loans are repaid in full, if any Letter of Credit Exposure is then outstanding,
Borrower shall make a deposit to the cash collateral account described in Section
9.2(e) to the extent of the then-current Letter of Credit Exposure; and



               (ii) the principal Indebtedness evidenced by the Notes shall in any event be payable on the
Maturity Date applicable thereto.



          (f) The Notes may, at any time and from time to time, voluntarily be paid or prepaid in whole
or in part without premium or penalty, except that with respect to any voluntary prepayment under
this Section, (i) any partial prepayment shall be not less than $1,000,000, (ii) the Administrative
Agent shall have received written notice of any prepayment by noon, Cleveland time on the date of
prepayment (which must be a Banking Day) in the case of an Alternate Base Rate Loan, and, in the
case of a LIBOR Rate Loan, three (3) Banking Days before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s) being prepaid, (iii) any payment or
prepayment of all or any part of any LIBOR Rate Loan on a day other than the last day of the
applicable LIBOR Period shall be subject to Section 3.5(d) and (iv) upon any partial
prepayment of a LIBOR Rate Loan that reduces it below $1,000,000, the remaining portion thereof
shall automatically convert to an Alternate Base Rate Loan. Notwithstanding the foregoing, no
prior notice shall be required for the prepayment of any Swing Loan.




          (g) Unless otherwise approved by the Administrative Agent, Borrower shall cause all gross
proceeds of each and every Debt Offering and Equity Offering, less all reasonable costs, fees,
expenses, underwriting commissions, fees and discounts incurred in connection therewith, to be paid
to the Administrative Agent for the account of the Lenders as a prepayment of the Line Loans within
ten (10) days of the date of such offering to the extent of the outstanding balance of the Line
Loans and after the Line Loans are repaid in full as a deposit to the cash collateral account
described in Section 9.2(e) to the extent of the then-current Letter of Credit Exposure.
Provided that no Event of Default has occurred and is then continuing, Borrower shall be entitled
to designate the Line Loans to which such required prepayment shall be applied.




     3.2 Other Fees. In addition to the Letter of Credit issuance fee described above,
Borrower shall pay to KeyBank each of the other fees specified in the Fee Letter as and when due in
accordance therewith.



     3.3 Unused Fees. Borrower agrees to pay to the Administrative Agent for the account
of each Lender an unused facility fee (the “Unused Fee”) equal to an aggregate amount computed on a
daily basis by multiplying (i) the Unused Fee Percentage, expressed as a per diem rate, times (ii)
the excess of the Aggregate Line Commitment over the Outstanding Line Amount on such day. The
Unused Fee shall be payable quarterly in arrears on the first Banking Day of each calendar quarter



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(for the prior calendar quarter) and upon any termination of the Aggregate Line Commitment in its
entirety. Following its receipt of any such Unused Fee, Administrative Agent shall promptly pay to
each Lender its pro rata share of such Unused Fee.




     3.4 Increased Commitment Costs. If any Lender shall determine in good faith that the
introduction after the Closing Date of any applicable Law or guideline regarding capital adequacy,
or any change therein or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or administration thereof, or
compliance by such Lender (or its LIBOR Lending Office) or any corporation controlling such Lender,
with any request, guideline or directive regarding capital adequacy (whether or not having
the force of Law) of any such central bank or other authority not imposed as a result of such
Lender’s or such corporation’s failure to comply with any other Laws, affects or would affect the
amount of capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender’s or such corporation’s policies
with respect to capital adequacy and such Lender’s desired return on capital) determines in good
faith that the amount of such capital is increased, or the rate of return on capital is reduced, as
a consequence of its obligations under this Agreement, then, within ten (10) Banking Days after
demand of such Lender, Borrower shall pay to such Lender, from time to time as specified in good
faith by such Lender, additional amounts sufficient to compensate such Lender in light of such
circumstances, to the extent reasonably allocable to such obligations under this Agreement,
provided that Borrower shall not be obligated to pay any such amount which arose prior to the date
which is one hundred eighty (180) days preceding the date of such demand or is attributable to
periods prior to the date which is one hundred eighty (180) days preceding the date of such demand.
Each Lender’s determination of such amounts shall be conclusive in the absence of manifest error.



     3.5 LIBOR Costs and Related Matters.



          (a) If, after the date hereof, the existence or occurrence of any Special LIBOR Circumstance:




               (i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or
cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans or its
obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any
Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts
due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR
Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income (including taxes on gross income imposed in
lieu of net income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business”
and (ii) any withholding taxes or other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed, for any reason, to provide Borrower
with the appropriate form or forms required by Section 11.21, to the extent such forms are
then required by applicable Laws to establish a complete exemption;



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               (ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable
on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against assets of, deposits with or for
the account of, or credit extended by, any Lender or its LIBOR Lending Office); or



               (iii) shall impose on any Lender or its LIBOR Lending Office or the London interbank market
any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans,
its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the
same;


and the result of any of the foregoing, as determined in good faith by such Lender, increases the
cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or
in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans
or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or
receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any
of its Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate Advances, then,
within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent),
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had
funded 100% of its LIBOR Rate Advance in the London interbank market), provided, that with respect
to any additional amount arising as a result of the occurrence of an event described in clause (i)
above, Borrower shall not be obligated to pay any such amount which arose prior to the date which
is ninety (90) days preceding the date of such demand or is attributable to periods prior to the
date which is ninety (90) days preceding the date of such demand. A statement of any Lender
claiming compensation under this subsection shall be conclusive in the absence of manifest error.




          (b) If, after the date hereof, the existence or occurrence of any Special LIBOR Circumstance
shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or
its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Rate Loan, or
materially restrict the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, or to determine or charge interest rates based upon the
LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation
to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility
and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower.
Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate
Advances, together with accrued interest thereon, automatically shall be converted to Alternate
Base Rate Advances on either (1) the last day of the LIBOR Period(s) applicable to such LIBOR Rate
Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such
day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR
Rate Advances to such day(s), provided that in such event the conversion shall not be subject to
payment of a prepayment fee under Section 3.5(d). Each Lender agrees to endeavor promptly
to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date,
which will cause that Lender to notify the Administrative Agent under this Section, and agrees to
designate a different LIBOR Lending Office if such designation will avoid




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the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons set forth above (or those set
forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Rate Loan, such
Lender shall fund such amount as an Alternate Base Rate Advance for the same period of time, and
such amount shall be treated in all respects as an Alternate Base Rate Advance. Any Lender whose
obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify
the Administrative Agent and Borrower of the cessation of the Special LIBOR Circumstance which gave
rise to such suspension.




          (c) If, with respect to any proposed LIBOR Rate Loan:




               (i) the Administrative Agent reasonably determines that, by reason of circumstances affecting
the London interbank market generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the London
interbank market for the applicable LIBOR Period; or



               (ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined
by the Administrative Agent (i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the London interbank market in the relevant amount for the applicable LIBOR
Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the
applicable LIBOR Rate Advances;


then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders,
whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to
such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate
Advances shall be suspended.




          (d) Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders
against any loss or expense that the Lenders may sustain or incur (including, without limitation,
any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any
failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of
Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice
thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period
hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a
LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a
request for a LIBOR Rate Loan has been given, (v) any payment or prepayment permitted or mandated
hereunder of a LIBOR Rate Loan on a date other than the last day of the relevant LIBOR Period,
including without limitation upon acceleration following an Event of Default, or (vi) the
occurrence of any Event of Default, including but not limited to any loss or expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain a LIBOR Rate Loan. Without limiting the foregoing, such loss or
expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term
“Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by
the Lenders resulting from prepayment or failure to borrow, calculated by the Administrative Agent
as the difference between the amount of interest the Lenders would have




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earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable
LIBOR Period) had prepayment or failure to borrow not occurred and the interest the Lenders would
actually earn (from like investments in the Money Markets as of the date of prepayment or failure
to borrow) as a result of the redeployment of funds from the prepayment or failure to borrow.
Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary
prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal
balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding
markets available to Lenders, including negotiable certificates of deposit, commercial paper,
Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide
to Borrower a statement, signed by an officer of the Administrative Agent, explaining any such loss
or expense and setting forth the computation of the Breakage Fee pursuant to the preceding
provisions which, in the absence of manifest error, shall be conclusive and binding on Borrower.




          (e) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation
pursuant to this Section 3.5, and agrees to designate a different LIBOR Lending Office if
such designation will avoid the need for or reduce the amount of such compensation and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. Any request for compensation by a Lender under this Section 3.5 shall
set forth the basis upon which it has been determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the corresponding costs have been incurred
by the Lender.




     3.6 Late Payments. If any installment of principal or interest or any fee or cost or
other amount payable under any Loan Document to the Administrative Agent or any Lender is not paid
when due, it shall thereafter bear interest at a fluctuating interest rate per annum (the “Default
Rate”) at all times equal to (i) in the case of interest or principal, the sum of the rate
otherwise applicable to the Loans, plus 3% and (ii) in the case of any other amount, the sum of the
Alternate Base Rate plus 3%, to the fullest extent permitted by applicable Laws. Accrued and
unpaid interest on past due amounts (including, without limitation, interest on past due interest)
shall be compounded monthly, on the last day of each calendar month, to the fullest extent
permitted by applicable Laws, and shall be payable upon demand. In addition, Borrower shall pay,
upon demand, a late charge equal to five percent (5%) of any amount of interest and/or principal
payable on the Loans or any other amounts payable hereunder or under the other Loan Documents which
is not paid within ten (10) days of the date when due.



     3.7 Computation of Interest and Fees. Computation of interest and fees under this
Agreement shall be calculated on the basis of a year of 360 days and the actual number of days
elapsed, except that interest at the Alternate Base Rate shall be calculated on the basis of a 365
or 366 day year, as applicable. Interest shall accrue on each Loan for the day on which the Loan
is made; interest shall not accrue on a Loan, or any portion thereof, for the day on which the Loan
or such portion is paid. Any Loan that is repaid on the same day on which it is made shall bear
interest for one day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be payable hereunder
or under the Notes, and any amount paid as interest hereunder or under the Notes which would
otherwise be in excess of such maximum permitted amount shall instead be treated as a payment of
principal.



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     3.8 Non Banking Days. If any payment to be made by Borrower or any other Party under
any Loan Document shall come due on a day other than a Banking Day, payment shall instead be
considered due on the next succeeding Banking Day, unless, in the case of a payment relating to a
LIBOR Rate Loan, such next succeeding Banking Day is in the next calendar month, in which case such
payment shall be made on the next preceding Banking Day, and the extension of time shall be
reflected in computing interest and fees.



     3.9 Manner and Treatment of Payments.



          (a) Each payment hereunder (except payments pursuant to Sections 3.4, 3.5,
11.3, 11.11 and 11.22) or on the Notes or under any other Loan Document
shall be made to the Administrative Agent at the Administrative Agent’s Office for the account of
each of the Lenders or the Administrative Agent, as the case may be, in immediately available funds
not later than 4:00 p.m., Cleveland time, on the day of payment (which must be a Banking Day). All
payments received after such time, on any Banking Day, shall be deemed received on the next
succeeding Banking Day. The amount of all payments received by the Administrative Agent for the
account of each Lender shall be immediately paid by the Administrative Agent to the applicable
Lender in immediately available funds and, if such payment was received by the Administrative Agent
by 4:00 p.m., Cleveland time, on a Banking Day and not so made available to the account of a Lender
on that Banking Day, the Administrative Agent shall reimburse that Lender for the cost to such
Lender of funding the amount of such payment at the Federal Funds Effective Rate. All
payments shall be made in Dollars.




          (b) Each payment or prepayment shall be applied first to Swing Loans until paid in full, then
to Alternate Base Rate Loans until paid in full and finally to LIBOR Rate Loans. Each payment or
prepayment on account of any such Alternate Base Rate Loan or LIBOR Rate Loan shall be applied pro
rata according to the outstanding Advances made by each Lender comprising such Loan.




          (c) Each Lender shall keep a record (in writing or by an electronic data entry system) of
Advances made by it and payments received by it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be presumptive evidence of the
amounts owing, absent manifest error. Notwithstanding the foregoing sentence, the failure by any
Lender to keep such a record shall not affect Borrower’s obligation to pay the Obligations.




          (d) Each payment of any amount payable by Borrower or any other Party under this Agreement or
any other Loan Document shall be made without setoff or counterclaim and free and clear of, and
without reduction by reason of, any taxes, assessments or other charges imposed by any Governmental
Agency, central bank or comparable authority, excluding (i) taxes imposed on or measured in whole
or in part by any Lender’s overall net income (including taxes on gross income imposed in lieu of
net income tax, minimum taxes or branch profits taxes) by (A) any jurisdiction (or political
subdivision thereof) in which such Lender is organized or maintains its principal office or LIBOR
Lending Office or (B) any jurisdiction (or political subdivision thereof) in which such Lender is
“doing business” and (ii) any withholding taxes or other taxes based on gross income imposed by the
United States of America for any period with respect to which any Lender has failed, for whatever
reason, timely to provide Borrower with the appropriate form or




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forms required by Section 11.21, to the extent such forms are then required by applicable Laws to establish a complete
exemption (all such non excluded taxes, assessments or other charges being hereinafter referred to
as “Taxes”). To the extent that Borrower is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender under this Agreement,
Borrower shall (i) make such deduction or withholding and pay the same to the relevant Governmental
Agency and (ii) pay such additional amount to that Lender as is necessary to result in that
Lender’s receiving a net after Tax amount equal to the amount to which that Lender would have been
entitled under this Agreement absent such deduction or withholding.




     3.10 Funding Sources. Nothing in this Agreement shall be deemed to obligate any
Lender to obtain the funds for any Loan or Advance in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain the funds for any
Loan or Advance in any particular place or manner.



     3.11 Failure to Charge Not Subsequent Waiver. Any decision by the Administrative
Agent or any Lender not to require payment of any interest (including interest arising under
Section 3.6), fee, cost or other amount payable under any Loan Document, or to calculate
any amount payable by a particular method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Agent’s or such Lender’s right to require full payment of any interest
(including interest arising under Section 3.6), fee, cost or other amount payable under any
Loan Document, or to calculate an amount payable by another method that is not inconsistent with
this Agreement, on any other or subsequent occasion.



     3.12 Administrative Agent’s Right to Assume Payments Will be Made by Borrower. Unless
the Administrative Agent shall have been notified by Borrower prior to the date on which any
payment to be made by Borrower hereunder is due that Borrower does not intend to remit such
payment, the Administrative Agent may, in its discretion, assume that Borrower has remitted such
payment when so due and the Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date an amount equal to such Lender’s
share of such assumed payment. If Borrower has not in fact remitted such payment to the
Administrative Agent, each Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent
at the Federal Funds Effective Rate.



     3.13 Calculations Detail. The Administrative Agent, and any Lender, shall provide
reasonable detail to Borrower regarding the manner in which the amount of any payment to the
Administrative Agent and the Lenders, or that Lender, under Article 3 has been determined,
within a reasonable period of time after request by Borrower.



     3.14 Survivability. The provisions of Sections 3.4 and 3.5 shall
survive following the date on which the Commitments and all Letters of Credit are terminated and
all Loans and Obligations with respect to any Letter of Credit hereunder are fully paid, and
Borrower shall remain obligated thereunder for all claims under such Sections made by any Lender to
Borrower.




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ARTICLE 4




REPRESENTATIONS AND WARRANTIES




     Borrower represents and warrants to the Lenders that:



     4.1 Existence and Qualification; Power; Compliance With Laws. Parent is a corporation
duly formed, validly existing and in good standing under the Laws of Maryland. Borrower is a
limited partnership, duly formed, validly existing and in good standing under the Laws of Maryland,
and each Guarantor is a corporation, limited partnership, limited liability company or trust duly
formed, validly existing and in good standing under the Laws of its state of formation. Each of
the Loan Parties is duly qualified or registered to transact business and is in good standing in
each other jurisdiction in which the conduct of its business or the ownership or leasing of its
Properties makes such qualification or registration necessary, except where the failure so to
qualify or register and to be in good standing would not constitute a Material Adverse Effect.
Each of the Loan Parties has all requisite power and authority to conduct its business, to own and
lease its Properties and to execute and deliver each Loan Document to which it is a Party and to
perform its Obligations. All outstanding shares of capital stock of Parent are duly authorized,
validly issued, fully paid and nonassessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. To Borrower’s knowledge, each of
the Loan Parties is in compliance with all Laws and other legal requirements applicable to its
business, has obtained all authorizations, consents, approvals, orders, licenses and permits from,
and has accomplished all filings, registrations and qualifications with, or obtained exemptions
from any of the foregoing from, any Governmental Agency that are necessary for the transaction of
its business, except where the failure so to comply, obtain authorizations, etc., file, register,
qualify or obtain exemptions does not constitute a Material Adverse Effect. Parent is a “real
estate investment trust” within the meaning of §856 of the Code, has elected to be treated as a
real estate investment trust and is subject to federal income taxation as a real estate investment
trust pursuant to §§856-860 of the Code.



     4.2 Authority; Compliance With Other Agreements and Instruments and Government
Regulations. The execution, delivery and performance by each of the Loan Parties of the Loan
Documents to which it is a Party have been duly authorized by all necessary corporate, partnership
or limited liability company action, as applicable, and do not and will not:



          (a) Require any consent or approval not heretofore obtained of any partner, director,
stockholder, security holder or creditor of the Loan Parties;




          (b) Violate or conflict with any provision of any Loan Party’s charter, articles of
incorporation, bylaws or other organizational agreements, as applicable;




          (c) Result in or require the creation or imposition of any Lien upon or with respect to any
Property now owned or leased or hereafter acquired by the Loan Parties;




          (d) Violate in any material respect any material Requirement of Law applicable to the Loan
Parties; or




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          (e) Result in a breach of or constitute a default under, or cause or permit the acceleration
of any obligation owed under, any indenture or loan or credit agreement or any other
Contractual Obligation to which the Loan Parties are a party or by which the Loan Parties or
any of their Property is bound or affected;



and none of the Loan Parties is in violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit agreement described in Section
4.2(e), in any respect that constitutes a Material Adverse Effect.




     4.3 No Governmental Approvals Required. Except as previously obtained or made, and
except for consents, approvals or permits pertaining to construction or development of a type that
are routinely granted and that would not normally be obtained before the commencement of
performance and which Borrower has no reason to believe will not be obtained as and when required,
no authorization, consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by any of the Loan Parties of the Loan
Documents to which it is a Party.



     4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the names, form of
legal entity, number of shares of capital stock (or other applicable unit of equity interest)
issued and outstanding, and the record owner thereof and jurisdictions of organization of all
Subsidiaries of Parent. Unless otherwise indicated in Schedule 4.4, all of the outstanding
shares of capital stock, or all of the units of equity interest, as the case may be, of each such
Subsidiary are owned of record and beneficially by Parent, there are no outstanding options,
warrants or other rights to purchase capital stock of any such Subsidiary, and all such shares or
equity interests so owned are duly authorized, validly issued, fully paid and nonassessable, and
were issued in compliance with all applicable state and federal securities and other Laws, and are
free and clear of all Liens, except for Permitted Liens.



     4.5 Financial Statements. All financial statements and other information previously
delivered to the Administrative Agent by Borrower fairly present in all material respects the
financial condition, results of operations, cash flows and/or other information described therein.



     4.6 No Other Liabilities; No Material Adverse Changes. The Loan Parties do not have
any material liability or material contingent liability required under Generally Accepted
Accounting Principles to be reflected or disclosed, and not reflected or disclosed, in the balance
sheets described in Section 4.5, other than liabilities and contingent liabilities arising
in the ordinary course of business since the date of such financial statements. As of the Closing
Date, no circumstance or event has occurred that constitutes a Material Adverse Effect.



     4.7 [Intentionally Omitted.]



     4.8 Intangible Assets. The Loan Parties own, or possess the right to use to the
extent necessary in their respective businesses, all material trademarks, trade names, copyrights,
patents, patent rights, computer software, licenses and other Intangible Assets that are used in
the conduct of their businesses as now operated, and no such Intangible Asset, to the best
knowledge of Borrower,



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conflicts with the valid trademark, trade name, copyright, patent, patent
right or Intangible Asset of any other Person to the extent that such conflict constitutes a
Material Adverse Effect.



     4.9 [Intentionally Omitted.]



     4.10 Litigation. Except for (a) any matter fully covered as to subject matter and
amount (subject to applicable deductibles and retentions) by insurance for which the insurance
carrier has not asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against Parent or any of its Subsidiaries
of less than $10,000,000 (or, in each case in which this representation and warranty is remade
after the Closing Date, less than $10,000,000 or such greater amount that the Administrative Agent
has reasonably determined, after full written disclosure thereof by Borrower to the Administrative
Agent, would not constitute a Material Adverse Effect), (c) matters of an administrative nature not
involving a claim or charge against Parent or any of its Subsidiaries and (d) matters set forth in
Schedule 4.10, there are no actions, suits, proceedings or investigations pending as to
which Parent or any of its Subsidiaries have been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting Parent or any of its Subsidiaries or any
Property of any of them before any Governmental Agency, mediator or arbitrator. As of the Closing
Date, there are no judgments outstanding against or affecting the Parent or any of its Subsidiaries
or any Property individually or in the aggregate involving amounts in excess of $5,000,000.



     4.11 Binding Obligations. Each of the Loan Documents to which the Loan Parties are a
Party will, when executed and delivered by the Loan Parties, constitute the legal, valid and
binding obligation of the Loan Parties, enforceable against the Loan Parties in accordance with its
terms, except as enforcement may be limited by Debtor Relief Laws or equitable principles relating
to the granting of specific performance and other equitable remedies as a matter of judicial
discretion.



     4.12 No Default. No event has occurred and is continuing that is a Default or Event
of Default.



     4.13 ERISA.



          (a) With respect to each Pension Plan:




               (i) such Pension Plan complies in all material respects with ERISA and any other applicable
Laws to the extent that noncompliance would constitute a Material Adverse Effect;



               (ii) such Pension Plan has not incurred any “accumulated funding deficiency” (as defined in
Section 302 of ERISA) that would constitute a Material Adverse Effect;



               (iii) no “reportable event” (as defined in Section 4043 of ERISA, but excluding such events as
to which the PBGC has by regulation waived the requirement therein contained that it be notified
within thirty days of the occurrence of such event) has occurred that would constitute a Material
Adverse Effect; and



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               (iv) neither Parent nor any of its Subsidiaries has engaged in any nonexempt “prohibited
transaction” (as defined in Section 4975 of the Code) that would constitute a Material Adverse
Effect.



          (b) neither Parent nor any of its Subsidiaries has incurred or expects to incur any withdrawal
liability to any Multiemployer Plan that would constitute a Material Adverse Effect.




     4.14 Regulations T, U and X; Investment Company Act. No part of the proceeds of any
Loan hereunder will be used to purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any Margin Stock in violation of Regulations T, U and X. Neither Parent
nor any of its Subsidiaries is or is required to be registered as an “investment company” under the
Investment Company Act of 1940, as amended.



     4.15 Disclosure. No written statement made by a Senior Officer to the Administrative
Agent or any Lender in connection with this Agreement, or in connection with any Loan, as of the
date thereof contained any untrue statement of a material fact or omitted a material fact necessary
to make the statement made not misleading in light of all the circumstances existing at the date
the statement was made.



     4.16 Tax Liability. Parent and its Subsidiaries have filed all tax returns which are
required to be filed, and have paid, or made provision for the payment of, all taxes with respect
to the periods, Property or transactions covered by said returns, or pursuant to any assessment
received by Parent or any of its Subsidiaries, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which adequate reserves have been
established and maintained, (b) immaterial taxes so long as no material Property of Parent or any
of its Subsidiaries is at impending risk of being seized, levied upon or forfeited and (c) certain
tax returns of the Loan Parties and their Subsidiaries are on extension.



     4.17 Hazardous Materials. Except as described in Schedule 4.17, as of the
Closing Date (a) neither Borrower, nor to the best knowledge of Borrower, any other Loan Party or
other Person at any time has disposed of, discharged, released or threatened the release of any
Hazardous Materials on, from or under the Projects in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b) to the best
knowledge of Borrower, no condition exists that violates any Hazardous Material Law affecting any
Projects except for such violations that would not individually or in the aggregate constitute a
Material Adverse Effect, (c) no Projects or any portion thereof is or has been utilized by Borrower
nor, to the best knowledge of Borrower, any other Loan Party or other Person as a site for the
manufacture of any Hazardous Materials, (d) to the extent that any Hazardous Materials are used,
generated or stored by Borrower or any other Loan Party or other Person on any Project, or
transported to or from such Project by Borrower or any other Loan Parties or other Persons, such
use, generation, storage and transportation by Borrower and, to the best knowledge of Borrower, by
any other Loan Party or other Person are in compliance with all Hazardous Materials Laws except for
such non compliance that would not constitute a Material Adverse Effect or be materially adverse to
the interests of the Lenders, and (e) no Project is subject to any remediation, removal,
containment or similar action conducted by or on behalf of Borrower or any other Loan Party or
other Person, or



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with respect to any such Project listed on Schedule 4.17 which is subject
to any such action, the estimated costs for completing such action are as set forth on Schedule
4.17.



     4.18 Initial Pool Properties. The Initial Unencumbered Projects described on
Schedule 4.18 are, as of the Closing Date, Qualified Unencumbered Projects and comprise the
initial Unencumbered Pool.



     4.19 Property. All of the Loan Parties’ and their respective Subsidiaries’ properties
are in good repair and condition, subject to ordinary wear and tear, other than with respect to (i)
deferred maintenance existing as of the date of acquisition of such property as permitted in this
Section 4.19, (ii) Projects currently under development and (iii) defects relating to
properties other than properties in the Unencumbered Pool which would not constitute a Material
Adverse Effect. The Loan Parties further have completed or caused to be completed an appropriate
investigation of the environmental condition of each such property as of the later of (a) the
approximate date of the Loan Parties’ or such Subsidiaries’ purchase thereof or (b) the approximate
date upon which such property was last security for Indebtedness of such Borrower or such
Subsidiary if such financing was not closed on or about the date of the acquisition of such
property to the extent such an investigation was required by the applicable lender, including
preparation of a “Phase I” report and, if appropriate, a “Phase II” report, in each case prepared
by a recognized environmental consultant in accordance with customary standards which discloses
that such property is not in violation of the representations and covenants set forth in this
Agreement, unless such violation as to properties in the Unencumbered Pool has been disclosed in
writing to the Administrative Agent and satisfactory remediation actions are being taken. There
are no unpaid or outstanding real estate or other taxes or assessments on or against any property
of any Loan Party or any of their respective Subsidiaries which are payable by such Person (except
only real estate or other taxes or assessments that are not yet due and payable). There are no
pending eminent domain proceedings against any property included within the Unencumbered Pool, and,
to the best knowledge of Borrower, no such proceedings are presently threatened by any taking
authority which individually or in the aggregate would constitute a Material Adverse Effect. None
of the property of the Loan Parties or their respective Subsidiaries is now damaged or injured as a
result of any fire, explosion, accident, flood or other casualty in any manner which individually
or in the aggregate would constitute a Material Adverse Effect. The Projects owned by Parent, each
of the other Loan Parties and their respective Subsidiaries as of the date hereof, are set forth on
Schedule 4.19 hereto.



     4.20 Brokers. None of the Loan Parties or their respective Subsidiaries has engaged
or otherwise dealt with any broker, finder or similar entity in connection with this Agreement or
the Loans contemplated hereunder.



     4.21 Other Debt. None of the Loan Parties or their respective Subsidiaries is in
default (after expiration of all applicable grace and cure periods) in the payment of any other
Indebtedness or under any mortgage, deed of trust, security agreement, financing agreement or
indenture involving Indebtedness of $30,000,000 or more or under any other material agreement or
lease to which any of them is a party. None of the Loan Parties is a party to or bound by any
agreement, instrument or indenture that may require the subordination in right or time of payment
of any of the Obligations to any other Indebtedness or obligation of such Loan Party. Schedule
4.21 hereto sets



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forth all of the Secured Indebtedness and recourse Indebtedness of the type
described in Sections 6.11 and 6.12 of the Loan Parties and their respective
Subsidiaries as of the date hereof.



     4.22 Solvency. As of the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all of the Loans made or to
be made hereunder, none of the Loan Parties (taken on a consolidated basis) is insolvent on a
balance sheet basis such that the sum of such Person’s assets exceeds the sum of such Person’s
liabilities (taken on a consolidated basis), each Loan Party is able to pay its debts as they
become due, and each Loan Party has sufficient capital to carry on its business.



     4.23 No Fraudulent Intent. Neither the execution and delivery of this Agreement or
any of the other Loan Documents nor the performance of any actions required hereunder or thereunder
is being undertaken by any Loan Party with or as a result of any actual intent by any of such
Persons to hinder, delay or defraud any entity to which any of such Persons is now or will
hereafter become indebted.



     4.24 Transaction in Best Interests of Loan Parties; Consideration. The transaction
evidenced by this Agreement and the other Loan Documents is in the best interests of the Loan
Parties. The direct and indirect benefits to inure to the Loan Parties pursuant to this Agreement
and the other Loan Documents constitute substantially more than “reasonably equivalent value” (as
such term is used in Section 548 of the Bankruptcy Code) and “valuable consideration,” “fair
value,” and “fair consideration” (as such terms are used in any applicable state fraudulent
conveyance law), in exchange for the benefits to be provided by the Loan Parties pursuant to this
Agreement and the other Loan Documents, and but for the willingness of the Loan Parties to be
jointly and severally liable as co Loan obligor for the Loan, Loan Parties would be unable to
obtain the financing contemplated hereunder which financing will enable the Loan Parties and their
respective Subsidiaries to have available financing to conduct and expand their business.



     4.25 No Bankruptcy Filing. None of the Loan Parties or any of their respective
Subsidiaries is contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of its Property, and none of the Loan Parties has
any knowledge of any Person contemplating the filing of any such petition against it or any
Subsidiary.



     4.26 OFAC Representation. The Borrower and each Guarantor is not, and shall not be at
any time, a person with whom the Lenders are restricted from doing business under the regulations
of the Office of Foreign Asset Control (“OFAC”) of the Department of Treasury of the United States
of America (including, those Persons named on OFAC’s Specially Designated and Blocked Persons list)
or under any statute, executive order (including, the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action and is not and shall not engage in any dealings or
transactions or otherwise be associated with such persons. In addition, the Borrower hereby agrees
to provide (and cause each Guarantor to provide) to the Administrative Agent any information that
the Administrative Agent deems necessary from time to time in order to ensure compliance with all
applicable Laws concerning money laundering and similar activities.



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ARTICLE 5




AFFIRMATIVE COVENANTS OTHER THAN



INFORMATION AND REPORTING REQUIREMENTS




     So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any
other Obligation remains unpaid, or any portion of the Commitments remains in force, Borrower
shall, and shall cause the other Loan Parties and its other Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents:



     5.1 Payment of Taxes and Other Potential Liens. Pay and discharge promptly all taxes,
assessments and governmental charges or levies imposed upon any of them, upon their respective
Property or any part thereof and upon their respective income or profits or any part thereof, and
all claims for labor, materials or supplies that if unpaid might by Law become a Lien upon any of
their respective Property, except that the Loan Parties and their respective Subsidiaries shall not
be required to pay or cause to be paid (a) any tax, assessment, charge, levy or claim that is not
yet past due, or is being contested in good faith by appropriate proceedings so long as the
relevant entity has established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax or claim so long as no material Property of the Loan Parties or their
Subsidiaries is at immediate risk of being seized, levied upon or forfeited.



     5.2 Preservation of Existence. Preserve and maintain their respective existences in
the jurisdiction of their formation and all material authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits, or registrations from any Governmental
Agency that are necessary for the transaction of their respective business and qualify and remain
qualified to transact business in each jurisdiction in which such qualification is necessary in
view of their respective business or the ownership or leasing of their respective Properties except
(a) as otherwise permitted by this Agreement and (b) where the failure to so qualify or remain
qualified would not constitute a Material Adverse Effect.



     5.3 Maintenance of Projects. Maintain, preserve and protect all of their respective
Income-Producing Projects in good order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of their respective Projects.



     5.4 Maintenance of Insurance. Maintain liability, casualty and other insurance
(subject to customary deductibles and retentions) with responsible insurance companies in such
amounts and against such risks as is carried by responsible companies engaged in similar businesses
and owning similar assets in the general areas in which the Loan Parties or such Subsidiaries, as
applicable, operate. Without limiting the foregoing, upon request of the Administrative Agent,
each Loan Party shall maintain for itself, and its Subsidiaries, or cause each of its Subsidiaries
to maintain, terrorism insurance in form, substance and amount as is reasonably satisfactory to the
Administrative Agent.



     5.5 Compliance With Laws. Comply with all Requirements of Law noncompliance with
which would constitute a Material Adverse Effect, except that the Loan Parties or such Subsidiaries
need not comply with a Requirement of Law then being contested by any of them in good faith by
appropriate proceedings.



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     5.6 Permitted Business Activities. Engage only in Permitted Business Activities, and
only own assets and make Investments that will be used in connection with such Permitted Business
Activities and are incidental thereto.



     5.7 Keeping of Records and Books of Account. Keep adequate records and books of
account reflecting all financial transactions in conformity with Generally Accepted Accounting
Principles, consistently applied.



     5.8 Compliance With Agreements. Promptly and fully comply with all Contractual
Obligations to which any one or more of them is a party, except for any such Contractual
Obligations (a) the performance of which would cause a Default, (b) then being contested by any of
them in good faith by appropriate proceedings or (c) the failure with which to comply would not
reasonably be expected to constitute a Material Adverse Effect.



     5.9 Use of Proceeds. Use the proceeds of all Loans and issuances of Letters of Credit
for working capital and general corporate purposes of the Loan Parties, including the refinancing
of existing and future indebtedness (including without limitation the funding of costs associated
with the development and/or redevelopment of Projects and other costs incurred in the acquisition,
operation, sale, financing and management of Projects) and other general corporate purposes, in
each case in connection with the Permitted Business Activities.



     5.10 Hazardous Materials Laws. Keep and maintain all Projects and each portion
thereof in compliance in all material respects with all applicable material Hazardous Materials
Laws and promptly notify the Administrative Agent in writing (attaching a copy of any pertinent
written material) of (a) any and all material enforcement, cleanup, removal or regulatory actions
instituted, completed or threatened in writing by a Governmental Agency pursuant to any applicable
material Hazardous Materials Laws, (b) any and all material claims made or threatened in writing by
any Person against the Loan Parties or their respective Subsidiaries relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials
and (c) discovery by any Senior Officer of any of the Loan Parties or any of their respective
Subsidiaries of any material occurrence or condition on any Project that could reasonably be
expected to cause such Project to be subject to any restrictions on the ownership, occupancy,
transferability or use of such Project under any applicable Hazardous Materials Laws.



     5.11 Qualified Unencumbered Projects. Cause each Project in the Unencumbered Pool to
remain a Qualified Unencumbered Project so long as it is in the Unencumbered Pool; provided that
nothing herein shall preclude the removal of any Project from the Unencumbered Pool pursuant to
Section 2.11.



     5.12 REIT Status. Maintain the status and election of Parent as a “real estate
investment trust” under §856 of the Code and comply with the dividend and other requirements
applicable under §857(a) of the Code.



     5.13 Additional Guarantors. Cause each Wholly Owned Subsidiary of Borrower which is
not then a Guarantor and which owns a Project that is or will become part of the Unencumbered



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Pool to execute and deliver the Joinder Agreement concurrently with the addition of such
Project to the Unencumbered Pool.



     5.14 Inspection of Properties and Books. Permit the Lenders, through the
Administrative Agent or any representative designated by the Administrative Agent, at Borrower’s
expense, to visit and inspect any of the properties of the Loan Parties or any of their respective
Subsidiaries (subject to the rights of any tenants), to examine the books of account of the Loan
Parties and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the affairs, finances and accounts of the Loan Parties and their respective Subsidiaries
with, and to be advised as to the same by, their Senior Officers, all at such reasonable times
(during normal business hours) and intervals as the Administrative Agent or any Lender may
reasonably request upon reasonable notice; provided, however, that inspections made at Borrower’s
expense shall be limited to once per year, unless an Event of Default shall have occurred and be
continuing. The Lenders shall use good faith efforts to coordinate such visits and inspections so
as to minimize the interference with and disruption to the Loan Parties’ or such Subsidiaries’
normal business operations.



     5.15 More Restrictive Agreements. Promptly notify the Administrative Agent should any
Loan Party or any Subsidiary of a Loan Party enter into or modify any agreements or documents
pertaining to any existing or future Indebtedness, Debt Offering or issuance of Preferred Equity,
which agreements or documents include covenants, whether affirmative or negative, which are
individually or in the aggregate more restrictive as to the matters covered by the definitions of
the terms “Borrowing Base” or “Facility Availability Amount”, or the provisions of Sections
5.17, 6.1, 6.3, 6.5 through 6.13, inclusive, and 6.15
(or any other provisions which may have the same practical effect as any of the foregoing) against
any of the Loan Parties or their respective Subsidiaries than those set forth herein, or which
provide for a guaranty of the obligations thereunder by a Person that is not liable for the
Obligations. If requested by the Requisite Lenders, the Loan Parties, the Administrative Agent,
and the Requisite Lenders shall promptly amend this Agreement and the other Loan Documents to
include some or all of such more restrictive provisions or provide for a guaranty of the
Obligations by such Person, in each case solely for the duration of such restrictive provisions or
guaranties under such other agreements or documents, as determined by the Requisite Lenders in
their sole reasonable discretion. Notwithstanding the foregoing, this Section 5.15 shall
not apply to covenants contained in any agreements or documents that relate only to a specific
Project that is collateral for any existing or future Indebtedness of any of Borrower or their
Subsidiaries that is permitted by the terms of this Agreement.



     5.16 Distributions of Income to the Loan Parties. Cause all of their respective
Subsidiaries to promptly transfer to the applicable Loan Party (but not less frequently than once
each Fiscal Quarter), whether in the form of dividends, distributions or otherwise, all profits,
proceeds or other income relating to or arising from its Subsidiaries’ use, operation, financing,
refinancing, sale or other disposition of their respective Property in excess of $2,000,000 in the
aggregate after (a) the payment by each Subsidiary of debt service on its Indebtedness and
operating expenses for such quarter and (b) the establishment of reasonable reserves for the
payment of operating expenses and capital improvements to be made to such Subsidiary’s assets and
properties approved by such Subsidiary in the ordinary course of business consistent with its past
practices and current needs.



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     5.17 Unencumbered Pool.



          (a) Cause each of the Income-Producing Projects in the Unencumbered Pool to satisfy all of the
following conditions (or notify the Administrative Agent when an Income-Producing Project no longer
satisfies such conditions promptly upon obtaining knowledge thereof and within five (5) Banking
Days thereafter remove such Income-Producing Project from the Unencumbered Pool in accordance with
Section 2.11):




               (i) each of the Income-Producing Projects shall be wholly owned in fee simple by Borrower or a
Wholly-Owned Subsidiary of Borrower (other than as specified in the definition of Qualified
Unencumbered Project with respect to the Exception Projects);



               (ii) the Income-Producing Projects in the Unencumbered Pool shall at all times have an
aggregate leasing level (on a portfolio basis) of at least eighty percent (80%) of the Net Rentable
Area within such Projects, based on bona fide arm’s length tenant leases which are in full force
and effect requiring current rental payments, which are in good standing and not in default in any
material respect and whose tenants are not subject to any bankruptcy or other insolvency
proceeding;



               (iii) no individual Income-Producing Project in the Unencumbered Pool may contribute to the
Borrowing Base more than 33% of the total amount of the Borrowing Base;



               (iv) if any single tenant contributes in excess of 20% (or 25% solely in the case of Human
Genome Sciences, Inc. under its current lease of the HGS Borrowing Base Project) of the annual
minimum rent generated by all tenants in the Income-Producing Projects in the Unencumbered Pool,
such excess shall be excluded from the calculation of Adjusted Unencumbered NOI and Aggregate
Adjusted Current Value; and



               (v) Borrower shall not, and shall not permit any Wholly-Owned Subsidiary of Borrower to, add
any Income-Producing Project to the Unencumbered Pool, or enter into any lease of space at any
Income-Producing Project in the Unencumbered Pool, that would cause any group of tenants in the
Income-Producing Projects then included in the Unencumbered Pool which are Affiliates to generate
more than 20% of the annual minimum rent generated by all tenants in such Income-Producing Projects
then included in the Unencumbered Pool.



          (b) Cause all of the Unstabilized Projects in the Unencumbered Pool to be wholly owned in fee
simple by Borrower or a Wholly-Owned Subsidiary of Borrower (or notify the Administrative Agent
when an Unstabilized Project no longer satisfies such condition promptly upon obtaining knowledge
thereof and within five (5) Banking Days thereafter remove such Unstabilized Project from the
Unencumbered Pool in accordance with Section 2.11).




          (c) Provide to the Administrative Agent as of the Closing Date and concurrently with the
delivery of the financial statements described in Section 7.1(c) as part of the Compliance
Certificate required pursuant to Section 7.2, (i) a list of the Income-Producing Projects
and the Unstabilized Projects in the Unencumbered Pool, (ii) the certification of a Senior Officer
of Borrower of the Adjusted Current Values of the Income-Producing Projects and the amounts of

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Invested Cash with respect to the Unstabilized Projects (and the status of construction
thereon), and that such Projects are in compliance with Sections 5.17(a) and (b),
(iii) operating statements setting forth the NOI for each of the Income-Producing Projects in the
Unencumbered Pool for the previous four (4) fiscal quarters (or such shorter period as the
Income-Producing Project has been held by the Loan Parties if such statements are not available to
Borrower) certified as true and correct by a Senior Officer of Borrower, and (iv) a certificate
that the Income-Producing Projects and the Unstabilized Projects in the Unencumbered Pool comply in
all material respects with the terms of Sections 4.17 and 4.19.




     5.18 Preservation of Right to Pledge Properties in the Unencumbered Pool. Take such
actions as are necessary to preserve its right and ability to pledge Projects in the Unencumbered
Pool to the Administrative Agent without any such pledge after the date hereof causing or
permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of
any other Indebtedness of the Loan Parties or any of their respective Subsidiaries. Borrower
shall, upon demand, provide to the Administrative Agent such evidence as the Administrative Agent
may reasonably require to evidence compliance with this Section 5.18, which evidence shall
include, without limitation, copies of any agreements or instruments which would in any way
restrict or limit a Loan Party’s ability to pledge assets as security for Indebtedness, or which
provide for the occurrence of a default (after the giving of notice or the passage of time, or
otherwise) if assets are pledged in the future as security for Indebtedness of such Loan Party or
any of its Subsidiaries.



ARTICLE 6




NEGATIVE COVENANTS




     So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any
other Obligation remains unpaid, or any portion of the Commitments remains in force, the Loan
Parties and their respective Subsidiaries shall not, unless the Administrative Agent (with the
written approval of the Requisite Lenders or, if required by Section 12.1, of all of the
Lenders) otherwise consents:



     6.1 Mergers and Liquidation. (i) Merge or consolidate with or into any Person, except
a merger or consolidation of one or more Loan Parties with and into another Loan Party or one or
more Subsidiaries of a Loan Party with and into another Subsidiary of such Loan Party or another
Loan Party, provided that in all cases Parent and Borrower must both be surviving entities or (ii)
agree to sell, transfer or dispose of assets which, when aggregated with all other assets sold
during the current Fiscal Quarter and the three (3) preceding Fiscal Quarters, would exceed twenty
percent (20%) of the then-current Gross Asset Value. Notwithstanding the foregoing, Borrower may
permit the merger or consolidation of any “Subject Property Owner” or any transfer of a “Subject
Property” (as such terms are defined under the Secured Term Loan Agreement) so long as such
transaction is permitted by, and satisfies the requirements of, the Secured Term Loan Agreement.



     6.2 ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any non exempt
“prohibited transaction” (as defined in Section 4975 of the Code) that would constitute a Material
Adverse Effect, (ii) fail to comply with ERISA in a manner that would constitute a Material Adverse
Effect, (iii) incur any material “accumulated funding deficiency” (as defined in



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Section
302 of ERISA) to the extent that it would constitute a Material Adverse Effect or (iv)
terminate in any manner that would constitute a Material Adverse Effect, or (b) withdraw,
completely or partially, from any Multiemployer Plan if to do so would constitute a Material
Adverse Effect.



     6.3 Permitted Business Activities. Engage in or pursue any business or other
activities or ventures other than Permitted Business Activities, or otherwise make any material
change in the principal nature of the business of the Consolidated Group.



     6.4 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Loan Parties or their respective Subsidiaries other than (a) salary, bonus,
employee stock option, relocation assistance and other compensation arrangements with directors or
officers in the ordinary course of business, (b) transactions that are fully disclosed to the board
of directors of Parent and expressly authorized by a resolution of the board of directors of Parent
which is approved by a majority of the directors not having an interest in the transaction, (c)
transactions expressly permitted by this Agreement, (d) transactions between one Loan Party and
another Loan Party or one Subsidiary and another Subsidiary or one Subsidiary and a Loan Party and
(e) transactions on overall terms at least as favorable to the Loan Parties or their Subsidiaries
as would be the case in an arm’s length transaction between unrelated parties of equal bargaining
power.



     6.5 Leverage Ratio. Permit the Leverage Ratio to be greater than 65%.



     6.6 [Intentionally Omitted.]



     6.7 Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio, as of any day, to
be less than 1.50 to 1.00.



     6.8 Distributions. Make any Distributions (a) if such Distributions for the preceding
four (4) Fiscal Quarters would exceed 95% of Funds From Operations of the Consolidated Group for
such period, plus revenue of the Consolidated Group from master leases of the KOP Project and the
Bayshore Project, provided that Parent shall be permitted to pay the minimum Distribution required
under the Code to maintain and preserve Parent’s status as a real estate investment trust under the
Code, as evidenced by a certification of a Senior Officer of Parent containing calculations in
reasonable detail satisfactory in form and substance to the Administrative Agent, if such
Distribution is greater than the amount set forth in this clause (a), and provided further that if
an Event of Default has occurred and is continuing, the Loan Parties may only make those
Distributions expressly permitted under Section 6.8(b), or (b) during the continuance of an
Event of Default, in excess of the minimum amount necessary to comply with Section 857(a) of the
Code, provided that if a monetary Event of Default or an Event of Default which involves the
bankruptcy of a Loan Party or which has resulted in an acceleration of the Obligations hereunder
occurs, no further Distributions may be made.



     6.9 Net Worth. Permit Net Worth, as of any date, to be less than the sum of (a)
$1,000,000,000, plus (b) eighty-five percent (85%) of the net proceeds from any Equity Offering of
any Loan Party made after the Closing Date.



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     6.10 Unsecured Debt Service Coverage. Permit the Unsecured Debt Service Coverage
Ratio, as of any date, to be less than 2.00 to 1.00.



     6.11 Secured Indebtedness. Permit Secured Indebtedness of the Consolidated Group to
exceed, as of any date, an amount equal to 55% of then-current Gross Asset Value.



     6.12 Secured Recourse Indebtedness. Permit the aggregate of all outstanding recourse
Secured Indebtedness, including the Indebtedness under the Related Facility but excluding all
Non-Recourse Indebtedness, as of any date, to exceed (a) 15% of then-current Gross Asset Value at
any time prior to the repayment in full of the Indebtedness under that certain $550,000,000
construction loan made by KeyBank National Association and certain other lenders to BMR-Blackfan
Circle LLC, a Subsidiary of Borrower, pursuant to an Amended and Restated Secured Acquisition and
Construction Loan Agreement dated as of December 31, 2006, or (b) 10% of then-current Gross Asset
Value at any time on or after the date that such construction loan has been repaid in full.



     6.13 Permitted Investments. Without limiting Section 5.6, permit the aggregate amount
invested by the Consolidated Group in the Investments listed below as subparagraphs (a) through (c)
to exceed 25% of Gross Asset Value:



          (a) the total value of undeveloped land owned by the Consolidated Group plus the Consolidated
Group Pro Rata Share of undeveloped land owned by Investment Affiliates (with undeveloped land
valued at cost);




          (b) the aggregate amount invested by the Consolidated Group in Projects owned by the
Consolidated Group that are under development, excluding the CFLS Project, plus the Consolidated
Group Pro Rata Share of any amounts so invested by the Investment Affiliates in Projects owned by
the Investment Affiliates that are under development (with Projects under development ceasing to be
treated as such when GAAP permits such Project to be classified as an operating asset); and




          (c) the aggregate amount invested by the Consolidated Group in or with respect to Investment
Affiliates, excluding the partnership that owns the real property located in San Diego, California
commonly known as the “McKellar Court” property.




     6.14 Liens. Create, incur, or suffer to exist any Negative Pledge or Lien in, of or
on the Project of any member of the Consolidated Group, except:



          (a) Liens for taxes, assessments or governmental charges or levies on its Property if the same
shall not at the time be delinquent or thereafter can be paid without material penalty, or are
being contested in good faith and by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;




          (b) Liens imposed by Law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment of obligations not
more than 60 days past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on their books;




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          (c) Liens arising out of pledges or deposits under workers’ compensation laws, unemployment
insurance, old age pensions, or other social security or retirement benefits, or similar
legislation;




          (d) easements, restrictions and such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties of a similar character (including,
without limitation, Liens with respect to rights of tenants under lease and rental agreements
entered into in the ordinary course of business) and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of Borrower or any
other member of the Consolidated Group;




          (e) Liens created under the Related Facility or any documents relating thereto;




          (f) any other Liens that, individually or in the aggregate, would not reasonably be expected
to impair the ability to place mortgage financing on the Project encumbered by such Liens or
otherwise constitute a Material Adverse Effect or subject such Project to a material impending risk
of loss of forfeiture or a material loss of value; and




          (g) first priority Liens other than Liens described in subsections (a) through (f) above
arising in connection with any Indebtedness permitted hereunder to the extent such Liens will not
result in a Default in any of Borrower’s covenants herein.



Liens permitted pursuant to this Section 6.14 shall be deemed to be “Permitted Liens.”




     6.15 [Intentionally Omitted.]



     6.16 Formation Documents. Permit any material change to the articles of
incorporation, bylaws, partnership agreement or any other material formation documents of Parent or
the Operating Partnership without the written consent of the Requisite Lenders, other than with
respect to changes made in connection with any preferred Equity Offering to reflect the terms of
the preferred securities being issued thereunder and any other amendments incidental thereto which
may be made without the Requisite Lenders consent, so long as the Administrative Agent has reviewed
such changes and confirmed that the terms of such preferred securities are customary and do not
create any creditors’ rights that would adversely affect in any material respect the rights of the
Lenders hereunder.



     6.17 Limiting Agreements. Enter into any agreement, instrument or transaction
(including without limitation any amendment to or modification of the Secured Term Loan Agreement)
which has or may have the effect of prohibiting or limiting Borrower’s or any Guarantor’s ability
to pledge to the Administrative Agent any Project within the Unencumbered Pool.



     6.18 Restrictions on Transfer. Directly or indirectly, make or permit to be made, by
voluntary or involuntary means, any sale, assignment, transfer, disposition, mortgage, pledge,
hypothecation or encumbrance of its direct or indirect interest in any Loan Party (provided that
the foregoing shall not prohibit transfers of Borrower’s interest in any other Loan Party provided
such Loan Party remains a Wholly-Owned Subsidiary of Borrower), or any dilution of its direct or



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indirect interest in any Loan Party. Borrower shall not in any manner transfer, assign,
diminish or otherwise restrict its direct or indirect right to vote or other rights with respect to
any Loan Party. Notwithstanding the foregoing, Borrower may sell, assign, transfer or dispose of
its interest in another Loan Party that is a Subsidiary of Borrower, provided that on or before the
closing of such sale Borrower shall have delivered to the Administrative Agent a certification,
together with such other evidence as the Administrative Agent may reasonably require, that Borrower
will be in compliance with all covenants in this Agreement after giving effect to such sale,
assignment, transfer or other disposition, and provided further that from and after any such sale,
the assets of such Loan Party shall no longer be included within the Unencumbered Pool.



ARTICLE 7




INFORMATION AND REPORTING REQUIREMENTS




     7.1 Financial and Business Information. So long as any Advance remains unpaid, or any
Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all
of the Lenders of the following:



          (a) As soon as practicable, and in any event within fifty (50) days after the end of each
Fiscal Quarter (other than the fourth Fiscal Quarter in any Fiscal Year), quarterly unaudited
consolidated financial statements, including a consolidated balance sheet, income statement and
statement of cash flows of the Consolidated Group as at the end of such Fiscal Quarter and for such
Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail. Such financial statements shall be certified by the Parent’s chief financial
officer, chief accounting officer or vice president of finance as fairly presenting the financial
condition, results of operations and cash flows of the Consolidated Group in accordance with
Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied,
as at such date and for such periods, subject only to normal year end accruals and audit
adjustments;




          (b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each
Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100)
days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of
such Fiscal Quarter, providing reasonable detail as to the calculation thereof;




          (c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each
Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100)
days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal
Quarter and Fiscal Year to date for each of the Income-Producing Projects in the Unencumbered Pool
and a complete Project roster, each in such detail as the Administrative Agent may reasonably
require;




          (d) All written information provided to shareholders of Parent;




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          (e) As soon as practicable, and in any event within one hundred (100) days after the end of
each Fiscal Year, annual audited consolidated financial statements, including a consolidated
balance sheet, income statement and statement of cash flows, of the Consolidated Group for such
Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance
with Generally Accepted Accounting Principles, consistently applied, and shall be certified by the
Parent’s chief financial officer, chief accounting officer or vice president of finance and by KPMG
or other independent public accountants of recognized standing selected by Parent and reasonably
satisfactory to the Requisite Lenders, which financial statements shall be prepared in accordance
with generally accepted auditing standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any other qualification or
exception determined by the Requisite Lenders in their good faith business judgment to be adverse
to the interests of the Lenders;




          (f) Upon request by the Administrative Agent, as soon as practicable, and in any event before
the commencement of each Fiscal Year, a budget and projection by Fiscal Quarter for that Fiscal
Year for the Consolidated Group, all in reasonable detail;




          (g) Promptly after request by the Administrative Agent or any Lender, copies of any detailed
audit reports, management letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of Parent by independent accountants in connection with
the accounts or books of Parent or any other member of the Consolidated Group, or any audit of any
of them;




          (h) Promptly after the same are available, and in any event within ten (10) days after filing
with the Securities and Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Parent, and copies of all
annual, regular, periodic and special reports and registration statements which Parent may file or
be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section 7.1;




          (i) Promptly after request by the Administrative Agent or any Lender, copies of any other
material report or other document that was filed by the Consolidated Group with any Governmental
Agency;




          (j) Promptly upon a Senior Officer becoming aware, and in any event within five (5) Banking
Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined
in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived
the requirement therein contained that it be notified within thirty days of the occurrence of such
event) or (ii) non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic
notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and specifying what action the
Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto;




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          (k) As soon as practicable, and in any event within five (5) Banking Days after a Senior
Officer becomes aware of the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no
more than five (5) Banking Days after such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what action the Consolidated Group is taking
or propose to take with respect thereto;




          (l) Promptly upon a Senior Officer becoming aware that (i) any Person has commenced a legal
proceeding with respect to a claim against any Loan Party that is $5,000,000 or more in excess of
the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement
involving Indebtedness of $5,000,000 or more or any lessor under a lease involving aggregate rent
of $5,000,000 or more has asserted a default thereunder on the part of any Loan Party or, (iii) any
Person has commenced a legal proceeding with respect to a claim against any Loan Party under a
contract (that is not a credit agreement or material lease) in excess of $5,000,000 or which
otherwise would constitute a Material Adverse Effect, a written notice describing the pertinent
facts relating thereto and what action the Loan Parties are taking or propose to take with respect
thereto;




          (m) [Intentionally Omitted.]




          (n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated
Group (including the fourth fiscal quarter in each year), a list (which may be included in the
Compliance Certificates) setting forth the following information with respect to each new
Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership
of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary
or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably
request;




          (o) Simultaneously with the delivery of the financial statements referred to in Section
7.1(e) above (if such information is not otherwise included in the financial statements or
other information presented to the Lenders pursuant to this Section 7.1), a statement
(which may be included in the Compliance Certificates) listing (i) the Projects owned by the
Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location
thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the
Indebtedness of the Consolidated Group, which statement shall include, without limitation, a
statement of the original principal amount of such Indebtedness and the current amount outstanding,
the holder thereof, the maturity date and any extension options, the interest rate, the collateral
provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii)
the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief
summary of the status of such development;




          (p) When and as required by Section 2.11, the information regarding each Qualified
Unencumbered Project, as more particularly described in Section 2.11;




          (q) When and as required by Section 5.17(c), the information regarding the
Unencumbered Pool, as more particularly described in Section 5.17(c); and




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          (r) Such other data and information as from time to time may be reasonably requested by the
Administrative Agent, any Lender (through the Administrative Agent) or the Requisite Lenders.




     7.2 Compliance Certificates. So long as any Advance remains unpaid, or any Letter of
Credit remains outstanding, or any other Obligation remains unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall, at Borrower’s sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders concurrently with the financial
statements required pursuant to Sections 7.1(a), 7.1(c) and 7.1(e),
Compliance Certificates signed by a Senior Officer.



     7.3 Borrowing Base and Availability Calculations. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitments remains outstanding, Borrower shall, at Borrower’s
sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, within 15
days following the addition of each Qualified Unencumbered Project to the Unencumbered Pool
pursuant to Section 2.11, and within 50 days of the end of each Fiscal Quarter, Borrower’s
calculation of the then effective amount of the Borrowing Base and Facility Availability Amount
(utilizing the information for the most recently reported Fiscal Quarter), in form and detail
reasonably satisfactory to the Administrative Agent (provided, however, that the Administrative
Agent may review, challenge, and, after good faith consultation with Borrower, adjust any such
calculations of the applicable Borrowing Base and Facility Availability Amount as it reasonably
deems appropriate should the Administrative Agent in good faith believe that such calculations are
not accurate or are not in conformance with the terms of this Agreement).



ARTICLE 8




CONDITIONS




     8.1 Initial Advances. The obligation of each Lender to make the initial Advance to be
made by it or of the Administrative Agent to issue the initial Letters of Credit is subject to the
following conditions precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion, shall agree otherwise):



          (a) The Administrative Agent shall have received all of the following, each of which shall be
originals unless otherwise specified, each properly executed by a Responsible Official of each
party thereto, each dated as of the Closing Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in the case of the date
of any of the following, unless the Administrative Agent otherwise agrees or directs):




               (i) at least one (1) executed counterpart of this Agreement and of the Guaranties, together
with arrangements satisfactory to the Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and Borrower;



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               (ii) Line Notes executed by Borrower in favor of each Lender, each in a principal amount equal
to that Lender’s Percentage of the Aggregate Commitment;



               (iii) Swing Loan Note executed by Borrower in favor of the Swing Loan Lender in the principal
amount of the Swing Loan Commitment;



               (iv) with respect to each of the Loan Parties, such documentation as the Administrative Agent
may reasonably require to establish the due organization, valid existence and good standing of each
of the Loan Parties, its qualification to engage in business in each material jurisdiction in which
it is engaged in business or required to be so qualified, its authority to execute, deliver and
perform the Loan Documents to which it is a Party, the identity, authority and capacity of each
Responsible Official thereof authorized to act on its behalf, including certified copies of
articles of incorporation and amendments thereto, bylaws and amendments thereto, certificates of
good standing and/or qualification to engage in business, tax clearance certificates, certificates
of corporate resolutions, incumbency certificates, Certificates of Responsible Officials, and the
like;



               (v) the Opinions of Counsel; and



               (vi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or the Requisite Lenders reasonably may require.



          (b) All of the fees then required to have been paid under the Fee Letter shall have been paid.




          (c) The reasonable costs and expenses of the Administrative Agent in connection with the
preparation of the Loan Documents payable pursuant to Section 11.3, and invoiced to
Borrower on or prior to the Closing Date, shall have been paid.




          (d) The representations and warranties of Borrower contained in Article 4 shall be
true and correct in all material respects.




          (e) Borrower and any other Loan Parties shall be in compliance with all the terms and
provisions of the Loan Documents, and giving effect to the initial Advance no Default or Event of
Default shall have occurred and be continuing.




          (f) All legal matters relating to the Loan Documents shall be satisfactory to counsel for the
Administrative Agent.




          (g) The Administrative Agent shall have received a Compliance Certificate (including existing
Borrowing Base and Facility Availability Amount calculations) dated as of the Closing Date
demonstrating compliance with each of the then applicable covenants calculated therein.




          (h) The Administrative Agent shall have received and approved all of the materials described
in Section 2.11 with respect to the Initial Unencumbered Projects.




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          (i) Evidence that any lenders under the Prior Agreement not continuing as Lenders hereunder
have consented to that fact.




          (j) The Administrative Agent shall have reviewed such other documents, instruments,
certificates, opinions, assurances, consents and approvals as the Administrative Agent or the
Administrative Agent’s special counsel may reasonably have requested.




     8.2 Any Advance. The obligation of each Lender to make any Advance or of the Swing
Loan Lender to make a Swing Loan or of the Administrative Agent to issue a Letter of Credit is
subject to the following conditions precedent (unless the Requisite Lenders, in their sole and
absolute discretion, shall agree otherwise):



          (a) except (i) for representations and warranties which expressly speak as of a particular
date or are no longer true and correct as a result of a change which is permitted by this Agreement
or (ii) as disclosed by Borrower and approved in writing by the Requisite Lenders, the
representations and warranties contained in Article 4 shall be true and correct in all
material respects on and as of the date of the Advance as though made on that date;




          (b) other than matters described in Schedule 4.10 or not required as of the Closing
Date to be therein described, there shall not be then pending or threatened any action, suit,
proceeding or investigation against or affecting Parent or any of its Subsidiaries or any Property
of any of them before any Governmental Agency that constitutes a Material Adverse Effect;




          (c) the Administrative Agent shall have timely received a Request for Loan or Letter of Credit
Request in compliance with Article 2;




          (d) no Default or Event of Default shall have occurred and be continuing;




          (e) if requested by the Administrative Agent, the Administrative Agent shall have received a
current calculation of the Borrowing Base and Facility Availability Amount with such supporting
information as the Administrative Agent may require adjusted in the best good faith estimate of
Borrower to the date of such certification; and




          (f) the Administrative Agent shall have received, in form and substance satisfactory to the
Administrative Agent, such other assurances, certificates, documents or consents related to the
foregoing as the Administrative Agent or Requisite Lenders reasonably may require.




ARTICLE 9




EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT




     9.1 Events of Default. The existence or occurrence of any one or more of the
following events, whatever the reason therefor and under any circumstances whatsoever, shall
constitute an “Event of Default”:



          (a) Borrower fails to pay any principal on any of the Notes, or any portion thereof, on the
date when due; or




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          (b) Borrower fails to pay any interest on any of the Notes or any fees under the Fee Letter,
or any portion thereof, within five (5) Banking Days after the date when due; or Borrower fails to
pay any other fee or amount payable to the Lenders or the Administrative Agent under any Loan
Document, or any portion thereof, within ten (10) Banking Days after demand therefor; or




          (c) Borrower fails to comply with any term, covenant, condition or agreement contained in
Article 6 , provided that in the case of such a failure to comply with Sections
6.1, 6.2, 6.3, 6.4, 6.14, 6.16, 6.17 and
6.18 only, such failure shall continue for a period of 10 days after the earlier of (x) the
date upon which a Senior Officer obtains knowledge of such failure or (y) the date upon which
Borrower has received a written notice of such failure from the Administrative Agent given at the
direction of the Requisite Lenders; or




          (d) Borrower shall fail to comply with Section 7.1(k) in any way that is materially
adverse to the interests of the Lenders; or




          (e) Borrower or any other Loan Party fails to perform or observe any other covenant or
agreement (not specified in clause (a), (b) or (c) above, or otherwise set forth below in this
Section 9.1) contained in any Loan Document on its part to be performed or observed within
thirty (30) days after the giving of notice by the Administrative Agent on behalf of the Requisite
Lenders of such Default or, if such Default is not reasonably susceptible of cure within such
period, within such longer period as is reasonably necessary to effect a cure so long as Borrower
or such Loan Party continues to diligently pursue cure of such Default but not in any event in
excess of ninety (90) days; and provided further, however, that notwithstanding the 30-day cure
period or extended cure period described above in this clause (e), if a different notice or cure
period is specified under any Loan Document or under any provision of the Loan Documents as to any
such failure or breach, the specific Loan Document or provision shall control, and Borrower or such
Loan Party shall have no more time to cure the failure or breach than is allowed under the specific
Loan Document or provision as to such failure or breach; or




          (f) Any representation or warranty of Borrower or any other Loan Party made in any Loan
Document, or in any certificate or other writing delivered by Borrower or any Loan Party pursuant
to any Loan Document, proves to have been incorrect when made or reaffirmed in any respect that is
materially adverse to the interests of the Lenders; or




          (g) Borrower or any Loan Party or other member of the Consolidated Group fails to perform or
observe any other term, covenant or agreement on its part to be performed or observed within any
applicable notice and cure period, or suffers any such event of default to occur, in connection
with (A) any present or future Indebtedness under the Secured Term Loan Agreement or any
other present or future Indebtedness (other than Non-Recourse Indebtedness) or (B) any present or
future Non-Recourse Indebtedness having an outstanding principal balance, individually or in the
aggregate, of $30,000,000 or more, if as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their behalf) has the right to declare such
Indebtedness due before the date on which it otherwise would become due or the right to require
such member of the Consolidated Group to redeem or purchase, or offer to redeem or purchase, all or
any portion of such Indebtedness (provided, that for the purpose of this clause (g), the principal

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amount of Indebtedness consisting of a Swap Agreement shall be the amount which is then
payable by the counterparty to close out the Swap Agreement); or




          (h) Any Loan Document, at any time after its execution and delivery and for any reason other
than the agreement or action (or omission to act) of the Administrative Agent or the Lenders or
satisfaction in full of all the Obligations ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect
which is materially adverse to the interests of the Lenders; or any Loan Party thereto denies in
writing that it has any or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or




          (i) A final judgment against any member of the Consolidated Group is entered for the payment
of money in excess of $5,000,000 (not covered by insurance or for which an insurer has reserved its
rights) and, absent procurement of a stay of execution, such judgment remains unsatisfied for sixty
(60) calendar days after the date of entry of judgment, or in any event later than ten (10) days
prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material part of the Property
of any such Person and is not released, vacated or fully bonded within sixty (60) calendar days
after its issue or levy; or




          (j) Any member of the Consolidated Group institutes or consents to the institution of any
proceeding under a Debtor Relief Law relating to it or to all or any material part of its Property,
or is unable or admits in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
that Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or
any proceeding under a Debtor Relief Law relating to any such Person or to all or any part of its
Property is instituted without the consent of that Person and continues undismissed or unstayed for
sixty (60) calendar days or such Person consents thereto or acquiesces therein, or a decree or
order for relief is entered in respect of any such Person in such proceeding; or




          (k) The occurrence of an Event of Default (as such term is or may hereafter be specifically
defined in any other Loan Document) under any other Loan Document; or




          (l) Any Pension Plan maintained by any member of the Consolidated Group is determined to have
a material “accumulated funding deficiency” as that term is defined in Section 302 of ERISA of an
amount that would constitute a Material Adverse Effect; or




          (m) Alan Gold shall at any time cease to be the Chief Executive Officer of Parent; provided
that the foregoing shall not constitute an Event of Default if a competent and experienced
successor for such Person shall be approved by the Requisite Lenders within three (3) months of
such event, such approval not to be unreasonably withheld, delayed or conditioned; or




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          (n) Failure to remediate within the time period permitted by Law or governmental order, after
all administrative hearings and appeals have been concluded (or within a reasonable time in light
of the nature of the problem if no specific time period is so established), material environmental
problems at Projects owned by Borrower or any other member of the Consolidated Group or any
Investment Affiliate which contribute in the aggregate in excess of $5,000,000 to Gross Asset
Value.




     9.2 Remedies Upon Event of Default. Without limiting any other rights or remedies of
the Administrative Agent or the Lenders provided for elsewhere in this Agreement, or the other Loan
Documents, or by applicable Law, or in equity, or otherwise:



          (a) Upon the occurrence, and during the continuance, of any Event of Default other than an
Event of Default described in Section 9.1(j):




               (i) the commitments to make Advances and Swing Loans and to issue Letters of Credit and all
other obligations of the Administrative Agent or the Lenders and all rights of Borrower and any
other Loan Parties under the Loan Documents shall be suspended without notice to or demand upon
Borrower, which are expressly waived by Borrower, except that all of the Lenders or the Requisite
Lenders (as the case may be, in accordance with Section 12.1) may waive an Event of Default
or, without waiving, determine, upon terms and conditions satisfactory to the Lenders or Requisite
Lenders, as the case may be, to reinstate the Commitments and such other obligations and rights and
make further Advances and Swing Loans and to issue Letters of Credit, which waiver or determination
shall apply equally to, and shall be binding upon, all the Lenders; and



               (ii) the Requisite Lenders may request the Administrative Agent to, and the Administrative
Agent thereupon shall, terminate the Commitments and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by Borrower.



          (b) Upon the occurrence and during the continuance of any Event of Default described in
Section 9.1(j):




               (i) the commitments to make Advances and Swing Loans and to issue Letters of Credit and all
other obligations of the Administrative Agent or the Lenders and all rights of Borrower and any
other Loan Parties under the Loan Documents shall terminate without notice to or demand upon
Borrower, which are expressly waived by Borrower, except that all of the Lenders or the Requisite
Lenders (as the case may be, in accordance with Section 12.1) may waive the Event of
Default or, without waiving, determine, upon terms and conditions satisfactory to all the Lenders,
to reinstate the Commitments and such other obligations and rights and make further Advances and
Swing Loans and to issue Letters of Credit, which determination shall apply equally to, and shall
be binding upon, all the Lenders; and




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               (ii) the unpaid principal of all Notes, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents shall be forthwith due and payable, all without protest,
presentment, notice of dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower.



          (c) Upon the occurrence and during the continuance of any Event of Default, the Administrative
Agent, on behalf of the Lenders, without notice to (except as expressly provided for in any Loan
Document) or demand upon Borrower, which are expressly waived by Borrower (except as to notices
expressly provided for in any Loan Document), may proceed (but only with the consent of the
Requisite Lenders) to protect, exercise and enforce their rights and remedies under the Loan
Documents against Borrower and any other Loan Party and such other rights and remedies as are
provided by Law or equity.




          (d) The order and manner in which the Lenders’ rights and remedies are to be exercised shall
be determined by the Requisite Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied first to the costs and
expenses (including reasonable attorneys’ fees and disbursements and the reasonably allocated costs
of attorneys employed by the Administrative Agent or by any Lender) of the Administrative Agent and
of the Lenders, then to the repayment of Swing Loans, and thereafter paid pro rata to the Lenders
in the same proportions that the aggregate Obligations owed to each Lender under the Loan Documents
bear to the aggregate Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the Administrative Agent and
the Lenders, as set forth above, second, to the payment of interest and principal (in that order)
due on Swing Loans, third, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of the Loan Documents), and fourth,
pari passu to the payment of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents and to the payment of any termination
payments due from Borrower in respect of Swap Agreements. No application of payments under this
clause (d) will cure any Event of Default, or prevent acceleration, or continued acceleration, of
amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights
or remedies of the Lenders hereunder or thereunder or at Law or in equity.




          (e) Upon the occurrence, and during the continuance, of any Event of Default, or to the extent
required pursuant to Section 3.1 above, Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the Letter of Credit
Exposure at such time. Borrower hereby grants to the Administrative Agent, for the benefit of the
Lenders under the Line Facility, a security interest in such cash collateral to secure all
obligations of Borrower in respect of such Letters of Credit under this Agreement and the other
Loan Documents. Borrower shall execute and deliver to the Administrative Agent, for the account of
the Lenders under the Line Facility, such further documents and instruments as the Administrative
Agent may request to evidence the creation and perfection of such security interest in such cash
collateral account. Amounts held in such cash collateral account shall be applied by the Administrative
Agent




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to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other Obligations of Borrower hereunder and under any Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all obligations under the Letters of
Credit shall have been satisfied and all other Obligations of Borrower hereunder and under any
Notes shall have been paid in full, the balance, if any, in such cash collateral account shall be
returned to Borrower. In addition, at any time that amounts are being held in such cash collateral
account and the Aggregate Line Commitment exceeds the Outstanding Line Amount, the balance in such
cash collateral account, to the extent of any such excess of the Aggregate Line Commitment over the
Outstanding Line Amount, shall be returned to Borrower promptly after the Administrative Agent’s
receipt of a written request from Borrower.




ARTICLE 10




THE ADMINISTRATIVE AGENT




     10.1 Appointment and Authorization. Subject to Section 10.8, each Lender
hereby irrevocably appoints and authorizes the Administrative Agent to take such action as the
contractual representative on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Administrative Agent by the terms thereof or are reasonably incidental, as
determined by the Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not constitute
appointment of the Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.



     10.2 Administrative Agent and Affiliates. KeyBank (and each successor Administrative
Agent in its individual capacity) has the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not the Administrative Agent, and the term
“Lender” or “Lenders” includes KeyBank in its individual capacity. KeyBank (and each successor
Administrative Agent in its individual capacity) and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business with Borrower or any
other member of the Consolidated Group, as if it were not the Administrative Agent and without any
duty to account therefor to the Lenders. KeyBank (and each successor Administrative Agent in its
individual capacity) need not account to any other Lender for any monies received by it for
reimbursement of its costs and expenses as the Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender hereunder, other than as required of any Lender
hereunder. The Administrative Agent shall not be deemed to hold a fiduciary or agency relationship
with any Lender and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this Section 10.2 shall apply equally to any other agents named herein.



     10.3 Proportionate Interest in any Collateral. The Administrative Agent, on behalf of
all the Lenders, shall hold in accordance with the Loan Documents all items of collateral (if any)
or interests therein received or held by the Administrative Agent. Subject to the Administrative



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Agent’s and the Lenders’ rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys’ fees and disbursements and other professional services and the reasonably
allocated costs of attorneys employed by the Administrative Agent or, upon the occurrence and
during the continuation of an Event of Default, a Lender) and subject to the application of
payments in accordance with Section 9.2(d), each Lender shall have an interest in the
Administrative Agent’s interest in such collateral (if any) or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Lenders, without priority or
preference among the Lenders.




     10.4 Lenders’ Credit Decisions. Each Lender agrees that it has, independently and
without reliance upon the Administrative Agent, any other Lender or the directors, officers,
agents, employees or attorneys of the Administrative Agent or of any other Lender, and instead in
reliance upon information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit analysis and decision to
enter into this Agreement. Each Lender also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan Documents.



     10.5 Action by Administrative Agent.



          (a) Absent actual knowledge of the Administrative Agent of the existence of a Default, the
Administrative Agent may assume that no Default (other than the failure to make a payment of
principal or interest when due) has occurred and is continuing, unless the Administrative Agent has
received notice from Borrower stating the nature of the Default or has received notice from a
Lender stating the nature of the Default and that such Lender considers the Default to have
occurred and to be continuing.




          (b) The Administrative Agent has only those obligations under the Loan Documents as are
expressly set forth therein.




          (c) Except for any obligation expressly set forth in the Loan Documents and as long as the
Administrative Agent may assume that no Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to comply with the instructions of the Requisite Lenders (or
of all the Lenders, to the extent required by Section 12.1) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, provided that the Administrative Agent
shall not be required to comply with such instructions if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the reasonable judgment of the Administrative
Agent, in substantial risk of liability to the Administrative Agent.




          (d) If the Administrative Agent has received a notice specified in clause (a) or has actual
knowledge of the existence of a Default, the Administrative Agent shall promptly give notice
thereof to the Lenders and shall comply with the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 12.1), provided that the Administrative
Agent shall not be required to comply with such instructions if to do so would be contrary to any
Loan




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Document or to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative Agent, and except that
if the Requisite Lenders (or all the Lenders, if required under Section 12.1) fail, for
five (5) Banking Days after the receipt of notice from the Administrative Agent, to instruct the
Administrative Agent, then the Administrative Agent, in its sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.




     10.6 Liability of Administrative Agent. Neither the Administrative Agent nor any of
its directors, officers, agents, employees or attorneys shall be liable for any action taken or not
taken by them under or in connection with the Loan Documents, except for their own gross negligence
or willful misconduct. Without limitation on the foregoing, the Administrative Agent and its
directors, officers, agents, employees and attorneys:



          (a) May treat the payee of any Note as the holder thereof until the Administrative Agent
receives notice of the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Lender as the owner of that Lender’s interest in the
Obligations for all purposes of this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative Agent, signed by
that Lender;




          (b) May consult with legal counsel (including in house legal counsel), accountants (including
in house accountants) and other professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for the Consolidated Group or the Lenders, and shall
not be liable for any action taken or not taken by it in good faith in accordance with any advice
of such legal counsel, accountants or other professionals or experts;




          (c) Shall not be responsible to any Lender for any statement, warranty or representation made
in any of the Loan Documents or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan Documents;




          (d) Shall have no duty to ask or inquire as to the performance or observance by Borrower or
the Loan Parties of any of the terms, conditions (except to ascertain that documents facially
responsive to the requirements of Article 8 have been delivered) or covenants of any of the
Loan Documents or to inspect any collateral or any Property, books or records of the Loan Parties;




          (e) Will not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection therewith, or any collateral;




          (f) Will not incur any liability by acting or not acting in reliance upon any Loan Document,
notice, consent, certificate, statement, request or other instrument or writing believed in good
faith by it to be genuine and signed or sent by the proper party or parties;




          (g) Will not incur any liability for any arithmetical error in computing any amount paid or
payable by Borrower or any other Loan Party thereof or paid or payable to or received or receivable
from any Lender under any Loan Document, including, without limitation,




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principal, interest, commitment fees, Advances and other amounts; provided that, promptly upon discovery of such an
error in computation, the Administrative Agent, the Lenders and (to the extent applicable) Borrower
and/or the other Loan Parties shall make such adjustments as are necessary to correct such error
and to restore the parties to the position that they would have occupied had the error not
occurred; and




          (h) Have not made nor do they now make any representations or warranties, express or implied,
nor do they assume any liability to the Lenders, with respect to the
creditworthiness or financial condition of the Consolidated Group, the value of their
respective assets or the collectability of the Loans.




     10.7 Indemnification. Each Lender shall, ratably in accordance with its Percentage of
the aggregate Commitments (if the Commitments are then in effect) or in accordance with its
proportion of the aggregate Indebtedness then evidenced by the Notes and Letter of Credit Exposure
(if the Commitments have then been terminated), indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees and
disbursements and allocated costs of attorneys employed by the Administrative Agent) that may be
imposed on, incurred by or asserted against it or them in any way relating to or arising out of the
Loan Documents (other than losses incurred by reason of the failure of Borrower to pay the
Indebtedness represented by the Notes) or any action taken or not taken by it as the Administrative
Agent thereunder, except such as result from its own gross negligence or willful misconduct.
Without limitation on the foregoing, each Lender shall reimburse the Administrative Agent upon
demand for that Lender’s Percentage of any out of pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution, delivery,
amendment, waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that any Borrower or any
other Loan Party is required by Section 11.3 to pay that cost or expense but fails to do so
upon demand. Nothing in this Section 10.7 shall entitle the Administrative Agent or any
indemnitee referred to above to recover any amount from the Lenders if and to the extent that such
amount has theretofore been recovered from Borrower or any other Loan Party. To the extent that
the Administrative Agent or any indemnitee referred to above is later reimbursed such amount by
Borrower or any other Loan Party, it shall return the amounts paid to it by the Lenders in respect
of such amount.



     10.8 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon reasonable notice to the Lenders and Borrower effective not earlier than
thirty (30) days after such notice, upon acceptance of appointment by a successor Administrative
Agent. The Requisite Lenders or all other Lenders other than the Administrative Agent may (with
the prior consent, not to be unreasonably withheld or delayed, of Parent, unless an Event of
Default shall have occurred and be continuing) remove the Administrative Agent from its capacity as
Administrative Agent in the event of the Administrative Agent’s willful misconduct or gross
negligence. If the Administrative Agent shall resign or be removed as Administrative Agent under
this Agreement, the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall require approval
by Parent so long as no Default or Event of Default has occurred and is continuing (and such



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approval shall not be unreasonably withheld or delayed). If no successor Administrative Agent is
appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and, so long as no Default or
Event of Default has occurred and is continuing, with the consent of Parent, a successor
Administrative Agent from among the Lenders. Upon the acceptance of its appointment as successor
Administrative Agent hereunder, such successor Administrative Agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”
shall mean such successor Administrative Agent and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated. After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this
Article 10, and Sections 11.3, 11.11 and 11.22, shall inure to its
benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid its administrative
agency fees under the Fee Letter or has not been reimbursed for any expense reimbursable to it
under Section 11.3, in either case for a period of at least one (1) year and (b) no
successor Administrative Agent has accepted appointment as Administrative Agent by the date which
is thirty (30) days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders
shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor Administrative Agent as provided for above.




     10.9 No Obligations of Borrower. Nothing contained in this Article 10 shall be
deemed to impose upon Borrower any obligation in respect of the due and punctual performance by the
Administrative Agent of its obligations to the Lenders under any provision of this Agreement, and
Borrower shall have no liability to the Administrative Agent or any of the Lenders in respect of
any failure by the Administrative Agent or any Lender to perform any of its obligations to the
Administrative Agent or the Lenders under this Agreement. Without limiting the generality of the
foregoing, where any provision of this Agreement relating to the payment of any amounts due and
owing under the Loan Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower’s obligations to the Lenders in
respect of such payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.



     10.10 Agents. Neither the Lead Arranger nor the Syndication Agent as shown on the
cover of this Agreement have any additional rights or obligations under the Loan Documents, except
for those rights or obligations, if any, as a Lender.



ARTICLE 11




MISCELLANEOUS




     11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and remedies of
the Administrative Agent and the Lenders provided herein or in any Note or other Loan Document are
cumulative and not exclusive of any right, power, privilege or remedy provided by Law or equity.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right,
power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may any



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single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise of
the same or any other right, power, privilege or remedy. The terms and conditions of Article
8 hereof are inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent’s or the Lenders’ rights to assert them in whole or in
part in respect of any other Loan.




     11.2 [Intentionally Omitted.]



     11.3 Costs, Expenses and Taxes. Borrower shall pay within five (5) Banking Days after
demand, accompanied by an invoice therefor, the reasonable costs and expenses of the Administrative
Agent in connection with the negotiation, preparation, syndication, execution, delivery,
administration and interpretation of the Loan Documents and any amendment thereto or waiver
thereof. Following and during the continuation of an Event of Default, Borrower shall also
pay on demand, accompanied by an invoice therefor, the reasonable costs and expenses of the
Administrative Agent and the Lenders in connection with the refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or attempted enforcement of
the Loan Documents, and any matter related thereto. The foregoing costs and expenses shall include
filing fees, recording fees, title insurance fees, appraisal fees, search fees, and other out of
pocket expenses and the reasonable fees and out of pocket expenses of any legal counsel (including
reasonably allocated costs of legal counsel employed by the Administrative Agent or any Lender),
independent public accountants and other outside experts retained by the Administrative Agent or
any Lender, whether or not such costs and expenses are incurred or suffered by the Administrative
Agent or any Lender in connection with or during the course of any bankruptcy or insolvency
proceedings of any member of the Consolidated Group. Borrower shall pay any and all documentary
and other taxes, excluding (i) taxes imposed on or measured in whole or in part by any Lender’s
overall net income imposed on such Lender (including taxes on gross income imposed in lieu of net
income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or political subdivision
thereof) in which such Lender is organized or maintains its principal office or LIBOR Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which such Lender is “doing
business” or (ii) any withholding taxes or other taxes based on gross income imposed by the United
States of America for any period with respect to which any Lender has failed, for any reason, to
provide Borrower with the appropriate form or forms required by Section 11.21, to the
extent such forms are then required by applicable Laws to establish a complete exemption, and all
costs, expenses, fees and charges payable or determined to be payable in connection with the filing
or recording of this Agreement, any other Loan Document or any other instrument or writing to be
delivered hereunder or thereunder, or in connection with any transaction pursuant hereto or
thereto, and shall reimburse, hold harmless and indemnify on the terms set forth in Section
11.11 the Administrative Agent and the Lenders from and against any and all loss, liability or
legal or other expense with respect to or resulting from any delay in paying or failure to pay any
such tax, cost, expense, fee or charge or that any of them may suffer or incur by reason of the
failure of any Party to perform any of its Obligations. Any amount payable to the Administrative
Agent or any Lender under this Section 11.3 shall bear interest from the fifth Banking Day
following the date of demand for payment at the Default Rate.



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     11.4 Nature of Lenders’ Obligations. The obligations of the Lenders hereunder are
several and not joint or joint and several. Nothing contained in this Agreement or any other Loan
Document and no action taken by the Administrative Agent or the Lenders or any of them pursuant
hereto or thereto may, or may be deemed to, make the Lenders a partnership, an association, a joint
venture or other entity, either among themselves or with Borrower or any other member of the
Consolidated Group. A default by any Lender will not increase the Percentage of the Commitments
attributable to any other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in default, but is not
obligated to do so. The Administrative Agent agrees that it will use reasonable efforts (which
will not include the payment of money) either to induce the other Lenders to assume the obligations
of a Lender in default or to obtain another Lender, reasonably satisfactory to Borrower, to replace
such a Lender in default. A defaulting Lender’s right to participate in the administration of the
Loan Documents, including, without limitation, any rights to consent to or direct any action or
inaction of the Administrative Agent or to vote on any matter presented to the Lenders shall be
suspended during the pendency of such Lender’s default.



     11.5 Survival of Representations and Warranties. All representations and warranties
contained herein or in any other Loan Document, or in any certificate or other writing delivered by
or on behalf of any one or more of the Parties to any Loan Document, will survive the making
of the Loans hereunder and the execution and delivery of the Notes, and have been or will be relied
upon by the Administrative Agent and each Lender, notwithstanding any investigation made by the
Administrative Agent or any Lender or on their behalf.



     11.6 Notices. Except as otherwise expressly provided in the Loan Documents, all
notices, requests, demands, directions and other communications provided for hereunder or under any
other Loan Document must be in writing and must be mailed, telegraphed, telecopied, dispatched by
commercial courier or delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to any Loan Document,
at any other address as may be designated by it in a written notice sent to all other parties to
such Loan Document in accordance with this Section. Except as otherwise expressly provided in any
Loan Document, if any notice, request, demand, direction or other communication required or
permitted by any Loan Document is given by mail it will be effective on the earlier of receipt or
the fourth Banking Day after deposit in the United States mail with first class or airmail postage
prepaid; if given by telegraph or cable, when delivered to the telegraph company with charges
prepaid; if given by telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered (provided that if any such
communication is received after normal business hours or on a day that is not a Banking Day, it
shall be deemed to have been received on the next Banking Day following receipt). The
Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly
given by or on behalf of Borrower and Lenders shall be entitled to rely and act upon any notices
purportedly given to them by or on behalf of the Administrative Agent, even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. Borrower shall indemnify the Administrative Agent and each
Lender from all losses, costs, expenses and liabilities resulting from the reliance of such Person
on each notice purportedly given by Borrower, except to the extent of such Person’s gross
negligence.



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     11.7 Execution of Loan Documents. Unless the Administrative Agent otherwise specifies
with respect to any Loan Document, (a) this Agreement and any other Loan Document may be executed
in any number of counterparts and any party hereto or thereto may execute any counterpart, each of
which when executed and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken together will be deemed
to be but one and the same instrument and (b) execution of any such counterpart may be evidenced by
a telecopier transmission of the signature of such party. The execution of this Agreement or any
other Loan Document by any party hereto or thereto will not become effective until counterparts
hereof or thereof, as the case may be, have been executed by all the parties hereto or thereto.



     11.8 Binding Effect; Assignment.



          (a) This Agreement and the other Loan Documents to which the Loan Parties are a party are and
will be binding upon and inure to the benefit of the Loan Parties, the Administrative Agent, each
of the Lenders, and their respective successors and assigns, except that the Loan Parties may not
assign their rights hereunder or thereunder or any interest herein or therein without the prior
written consent of all the Lenders, and any purported assignment without such consent shall be null
and void. Each Lender represents that it is not acquiring its Note with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement
that disposition of such Note must be within the control of such Lender). Any Lender may at any
time pledge its Notes or any other instrument evidencing its rights as a Lender under this
Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent
foreclosure of such pledge.




          (b) From time to time following the Closing Date, each Lender may assign to one or more
Eligible Assignees all or any portion of its Commitment; provided that (i) such Eligible Assignee,
if not then a Lender or an Affiliate of the assigning Lender, shall require approval by the
Administrative Agent and (if no Event of Default then exists) Parent (neither of which approvals
shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by a Commitment
Assignment and Acceptance, a copy of which, together with any Notes subject to such assignment,
shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of
an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining
Commitments of the assigning Lender, the assignment shall not assign a share of the Commitments
that is equivalent to less than $10,000,000, (iv) the assignment shall be of a constant, and not a
varying, percentage of the Assignor’s rights and obligations under this Agreement, and (v) the
effective date of any such assignment shall be as specified in the Commitment Assignment and
Acceptance, but not earlier than the date which is five (5) Banking Days after the date the
Administrative Agent has received the Commitment Assignment and Acceptance unless otherwise agreed
by the Administrative Agent. Upon the effective date of such Commitment Assignment and Acceptance,
the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with a
Percentage and Commitment as therein (and herein, if such Eligible Assignee was already a Lender)
set forth and, to the extent of the portion of the Commitments assigned, the assigning Lender shall
be released from its further obligations under this Agreement. Borrower agrees that it shall
execute and deliver to such assignee Lender, Notes evidencing that assignee




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Lender’s Commitment, and to the assigning Lender, Notes evidencing the remaining balance of such Lender’s Commitment.




          (c) By executing and delivering a Commitments Assignment and Acceptance, the Eligible Assignee
thereunder acknowledges and agrees that: (i) the Administrative Agent and the assigning Lender has
not made any representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the Administrative Agent and the Assigning Lender has not made any
representation or warranty and assumes no responsibility with respect to the financial condition of
the Loan Parties or the performance by the Loan Parties of the Obligations; (iii) it has received a
copy of this Agreement and the other Loan Documents, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action
and to exercise such powers under this Agreement as are delegated to the Administrative Agent by
this Agreement; and (vi) it will perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed by it as a Lender.




          (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of
each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the
names and address of each of the Lenders and the Percentage and Commitment amounts held by each
Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be
available during normal business hours for inspection by Borrower or any Lender upon reasonable
prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and
Acceptance executed by any Lender and an Eligible Assignee and the Notes subject to such
assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the
Administrative Agent shall, promptly following the effective date thereof, upon the request of any
party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.
Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the Commitments listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment shall be effective, in each
case unless and until a Commitment Assignment and Acceptance effecting the assignment or transfer
thereof shall have been accepted by the Administrative Agent and recorded in the Register as
provided above. Prior to such recordation, all amounts owed with respect to the applicable
Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of such Commitments.




          (e) Each Lender may from time to time grant participations to one or more banks or other
financial institutions (including another Lender but excluding an Employee Plan) in a portion of
its Commitments; provided, however, that (i) such Lender’s obligations under this




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Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation agreement so provides,
for the purposes of Sections 3.7, 3.8, 11.11 and 11.22 but only to
the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would
have incurred absent the participation, (iv) Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, (v) the participation interest shall be
expressed as a percentage of the granting Lender’s Commitment as they then exist and shall not
afford such participant any rights or privileges under the Loan Documents except as provided in
clause (iii) above.




     11.9 Right of Setoff. If an Event of Default has occurred and is continuing, the
Administrative Agent or any Lender (but in each case only with the consent of the Requisite Lenders
and subject to the provisions of Section 11.10) may exercise its rights, if any, under
Article 9 of the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained with it by Borrower
and/or any Property of Borrower in its possession against the Obligations. any and all rights
to require administrative agent or any Lender to exercise its rights or remedies with respect to
any other collateral which secures the loan (if any), prior to exercising its right of setoff with
respect to such deposits, credits, or other property of borrowers, are hereby, knowingly,
voluntarily, and irrevocably waived.



     11.10 Sharing of Setoffs. Each Lender severally agrees that if it, through the
exercise of any right of setoff, banker’s lien or counterclaim against Borrower, or otherwise,
receives payment of the Obligations held by it that is ratably more than any other Lender, or
through any means, receives in payment of the Obligations held by that Lender, then, subject to applicable Laws:
(a) the Lender exercising the right of setoff, banker’s lien or counterclaim or otherwise receiving
such payment shall purchase, and shall be deemed to have simultaneously purchased, from each of the
other Lenders a participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker’s lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of the right of setoff,
banker’s lien or counterclaim or receipt of payment; and (b) such other adjustments and purchases
of participations shall be made from time to time as shall be equitable to ensure that all of the
Lenders share any payment obtained in respect of the Obligations ratably in accordance with each
Lender’s share of the Obligations immediately prior to, and without taking into account, the
payment; provided that, if all or any portion of a disproportionate payment obtained as a result of
the exercise of the right of setoff, banker’s lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Borrower or any Person claiming through or succeeding to
the rights of Borrower, the purchase of a participation shall be rescinded and the purchase price
thereof shall be restored to the extent of the recovery, but without interest (unless the Lender
from which such payment is recovered is required to pay interest thereon, in which case each Lender
returning funds to such Lender shall pay its pro rata share of such interest). Each Lender that
purchases a participation in the Obligations pursuant to this Section 11.10 shall from and
after the purchase have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original



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owner of the Obligations purchased. Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation so purchased pursuant to this Section 11.10 may exercise any
and all rights of setoff, banker’s lien or counterclaim with respect to the participation as fully
as if the Lender were the original owner of the Obligation purchased.




     11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and hold harmless the
Administrative Agent and Lead Arranger and each Lender and its Affiliates and their respective
directors, officers, agents, attorneys and employees (collectively the “Indemnitees”) from and
against: (a) any and all claims, demands, actions or causes of action (except a claim, demand,
action, or cause of action for any amount excluded from the definition of “Taxes” in Section
3.9(d)) if the claim, demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, the other members of the Consolidated Group or
any of their officers, directors or stockholders relating to the Commitments, the use or
contemplated use of proceeds of any Loan or any Letter of Credit, or the relationship of Borrower
and the Lenders under this Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or cause of action
described in clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(including reasonable attorneys’ fees and the reasonably allocated costs of attorneys employed by
any Indemnitee and disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. If any claim, demand, action or cause of action is asserted against any
Indemnitee, such Indemnitee shall promptly notify Borrower, but the failure to so promptly notify
Borrower shall not affect Borrower’s obligations under this Section unless such failure materially
prejudices Borrower’s right to participate in the contest of such claim, demand, action or cause of
action, as hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower in
writing) contest the validity, applicability and amount of such claim, demand, action or cause of
action and shall permit Borrower to participate in such
contest. Any Indemnitee that proposes to settle or compromise any claim or proceeding for
which Borrower may be liable for payment of indemnity hereunder shall give Borrower written notice
of the terms of such proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrower’s prior written consent (which
shall not be unreasonably withheld or delayed). In connection with any claim, demand, action or
cause of action covered by this Section 11.11 against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel (which may be a law firm engaged by the
Indemnitees or attorneys employed by an Indemnitee or a combination of the foregoing) selected by
the Indemnitees and reasonably acceptable to Borrower; provided, that if such legal counsel
determines in good faith that representing all such Indemnitees would or could result in a conflict
of interest under Laws or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such Indemnitees, then to
the extent reasonably necessary to avoid such a conflict of interest or to permit unqualified
assertion of such a defense or counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably acceptable to Borrower,
with all such legal counsel using reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Indemnitees; and further provided that the Administrative Agent (as an Indemnitee)



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shall at all times be entitled to representation by separate legal counsel (which may be a law firm
or attorneys employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under this Section 11.11 shall
survive the expiration or termination of this Agreement and all Letters of Credit and the repayment
of all Loans and the payment and performance of all other Obligations owed to the Lenders.




     11.12 Nonliability of the Lenders. Borrower acknowledges and agrees that:



          (a) Any inspections of any Property of Borrower or any other Loan Party made by or through the
Administrative Agent or the Lenders are for purposes of administration of the Loan only and
Borrower and such other Loan Parties are not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower);




          (b) By accepting or approving anything required to be observed, performed, fulfilled or given
to the Administrative Agent or the Lenders pursuant to the Loan Documents, neither the
Administrative Agent nor the Lenders shall be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Administrative Agent or the Lenders;




          (c) The relationship between Borrower and the Administrative Agent and the Lenders is, and
shall at all times remain, solely that of borrowers and lenders; neither the Administrative Agent
nor the Lenders shall under any circumstance be construed to be partners or joint venturers of
Borrower or any other member of the Consolidated Group, neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or any other member of the Consolidated Group, or to owe any
fiduciary duty to Borrower or any other member of the Consolidated Group; neither the
Administrative Agent nor the Lenders undertake or assume any responsibility or duty to Borrower or
any other member of the Consolidated Group, to select, review, inspect, supervise, pass judgment
upon or inform Borrower or any other member of the Consolidated Group, of any matter in connection
with their Property or the operations of Borrower or any other member of the Consolidated Group;
Borrower and such other members shall rely
entirely upon their own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or assumed by the
Administrative Agent or the Lenders in connection with such matters is solely for the protection of
the Administrative Agent and the Lenders and neither Borrower nor any other Person is entitled to
rely thereon; and




          (d) The Administrative Agent and the Lenders shall not be responsible or liable to any Person
for any loss, damage, liability or claim of any kind relating to injury or death to Persons or
damage to Property caused by the actions, inaction or negligence of Borrower and/or any other
member of the Consolidated Group, and Borrower hereby indemnifies and holds the Administrative
Agent and the Lenders harmless on the terms set forth in Section 11.11 from any such loss,
damage, liability or claim.




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     11.13 No Third Parties Benefited. This Agreement is made for the purpose of defining
and setting forth certain obligations, rights and duties of Borrower, the Administrative Agent and
the Lenders in connection with the Loans and Letters of Credit, and is made for the sole benefit of
Borrower, the Administrative Agent and the Lenders, and the Administrative Agent’s and the Lenders’
successors and assigns. Except as provided in Sections 11.8, 11.11 and
11.22 no other Person shall have any rights of any nature hereunder or by reason hereof.



     11.14 Confidentiality.



          (a) Confidentiality. Each Lender and the Administrative Agent (each, a “Lender
Party”) hereby agrees for itself only that, except as specifically set forth herein, such Lender
Party (i) shall not participate in or generate any press release or other release of information to
the general public relating to the closing of the Loan without the prior written consent of
Borrower, (ii) shall hold the Confidential Information in strict confidence in accordance with such
Lender Party’s customary procedures to prevent the misuse or disclosure of confidential information
of this nature and in accordance with safe and sound banking practices, (iii) shall use the
Confidential Information solely for the purposes of underwriting the Loan or acquiring an interest
therein, carrying out such Lender Party’s rights or obligations under this Agreement, in connection
with the syndication of the Loan, the enforcement of the Loan Documents, or other internal
examination, supervision or oversight of the transactions contemplated hereby as reasonably
determined by such Lender Party, or as otherwise permitted by the terms of this Section
11.14 (collectively, “Permitted Purposes”), and (iv) shall not disclose the Confidential
Information to any third party, except as expressly authorized in this Agreement or with prior
written consent of Borrower. Each Lender Party shall promptly notify Borrower in the event that it
becomes aware of any loss or unauthorized disclosure of any Confidential Information.



Each Lender Party shall not have any obligations under this Agreement with respect to a specific
portion of the Confidential Information if such Lender Party can demonstrate that such Confidential
Information (i) was publicly available at the time it was disclosed to such Lender Party, (ii)
became publicly available subsequent to the time it was disclosed to such Lender Party (except to
the extent such public availability was the result of such Lender Party’s disclosure), (iii) was in
or comes into a Lender Party’s possession from a source not known to such Lender Party (after
reasonable inquiry) to be in breach of an obligation of confidentiality owed to Borrower in making
such disclosure to such Lender Party, (iv) was in or comes into Lender Party’s possession free of
any obligation of confidence owed to Borrower at the time it was disclosed to such Lender Party, or
(v)was developed by the employees or agents of the Lender Party without the use of the Confidential
Information.




          (b) Disclosures. Any Lender Party or its legal counsel may disclose the Confidential
Information (i) to Borrower, other Lenders, the Administrative Agent or any of their respective
legal counsel, (ii) to its auditors in connection with bank audits or regulatory officials having
jurisdiction over such Lender Party, (iii) to its legal counsel who need to know the Confidential
Information for the purposes of representing or advising the Lender Parties, (iv) to its
consultants, agents and advisors retained in good faith by such Lender Party with a need to know
such information in connection with a Permitted Purpose or to otherwise advise or consult with such
Lender Party, (v) as required by Law or legal process (subject to the terms below), or in
connection




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with any legal proceeding to which that Lender Party and any Loan Party are adverse
parties (and Borrower hereby acknowledges and agrees that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), each
Lender is required to obtain, verify and record information that identifies the Loan Parties, which
information includes the name and address of the Loan Parties and other information that will allow
such Lender to identify the Loan Parties in accordance with the Act), (vi) to another potential
Lender or participant in connection with an assignment or proposed assignment to that Person of all
or part of that Lender Party’s interests hereunder or a participation interest in its Notes, and
(vii) to its directors, officers, employees and Affiliates who need to know the Confidential
Information for purposes of underwriting the Loan or becoming a party to this Agreement, the
syndication of the Loan, the administration, interpretation, performance or exercise of rights
under the Loan Documents, the enforcement of the Loan Documents, or other internal supervision,
examination or oversight of the transactions contemplated hereby as reasonably determined by such
Lender Party, provided that any Person to whom any of the Confidential Information is
disclosed is informed by such Lender Party of the strictly confidential nature of the Confidential
Information, and such Persons described in clauses (b)(iv) and (vi) shall agree in
writing to be bound by confidentiality restrictions at least as restrictive as those contained
herein. Notwithstanding the foregoing, a Lender Party may disclose Confidential Information to the
extent such Lender Party is requested or required by any Law or any order of any Governmental
Agency or self regulatory body or other legal process to make any disclosure of or about any of the
Confidential Information. In such event (except with respect to banking regulators or auditors),
such Lender Party shall, if permitted by Law, promptly notify Borrower in writing so that Borrower
may seek an appropriate protective order or waive compliance with the provisions of this Agreement
(provided that if a protective order or the receipt of a waiver hereunder has not been
obtained, or if prior notice is not possible, and a Lender Party is, in the opinion of its counsel,
compelled to disclose Confidential Information, such Lender Party may disclose that portion of the
Confidential Information which its counsel advises it that such Lender Party is compelled to
disclose, and provided further that in any event, such Lender Party will not oppose action
by Borrower to obtain an appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.) Each Lender Party shall be liable (but
only to the extent it is finally determined to have breached the provisions of this Section
11.14(b)) for any actions by such Lender Party (but not any other Person) which are not in
accordance with the provisions of this Section 11.14(b).



Notwithstanding anything herein to the contrary, Confidential Information shall not include, and
Administrative Agent and each Lender may disclose to any and all Persons, without limitation of any
kind, any information with respect to the “tax treatment” and “tax structure” (in each case, within
the meaning of Treasury Regulation Section 1.6011 4) of the transactions contemplated hereby and
all materials of any kind (including opinions or other tax analyses) that are provided to
the Administrative Agent or any Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either case contains information
concerning the tax treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, the Letters of Credit and transactions contemplated
hereby.




          (c) No Rights in Confidential Information. The Administrative Agent and each Lender
recognizes and agrees that nothing contained in this Section 11.14 shall be construed as




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granting any property rights, by license or otherwise, to any Confidential Information (other than
the Agreement or any amendments thereto or any related agreements), or to any invention or any
patent, copyright, trademark, or other intellectual property right that has issued or that may
issue, based on such Confidential Information (other than the Agreement or any amendments thereto
or any related agreements). No Lender Party shall make, have made, use or sell for any purpose any
product or other item using, incorporating or derived from any such Confidential Information;
provided that the foregoing shall not limit or restrict in any way the creation, use or
sale of banking or related services by any Lender Party.




          (d) Survival. All Confidential Information provided by or on behalf of Borrower
during the term of this Agreement or any predecessor agreements shall remain confidential
indefinitely and shall continue to receive that level of confidential treatment customarily
provided by commercial banks dealing with confidential information of their borrower customers,
subject, however, to the specific exceptions to confidential treatment provided herein. For a
period of one year after the Termination Date, the affected Lender Party shall continue to make
reasonable inquiry of any third party providing Confidential Information as to whether such third
party is subject to an obligation of confidentiality owed to Borrower or its Subsidiaries and if
such Lender Party obtains knowledge that such third party is violating a confidentiality agreement
with Borrower, such Lender Party shall treat the Confidential Information received from such third
party as strictly confidential in accordance with the provisions of this Section 11.14.
For purposes of this Section 11.14(d), the “Termination Date” shall mean the earlier of the
termination of this Agreement or, with respect to a specific Lender Party, the date such Person no
longer holds an interest in the Loan.




          (e) Injunctive Relief. Each Lender Party hereby agrees that breach of this
Section 11.14 will cause Borrower irreparable damage for which recovery of damages would be
inadequate, and that Borrower shall therefore be entitled to obtain timely injunctive relief under
this Agreement, as well as such further relief as may be granted by a court of competent
jurisdiction.




          (f) No Fiduciary Duty. Nothing in this Section shall be construed to create or give
rise to any fiduciary duty on the part of the Administrative Agent or the Lenders to Borrower.




          (g) Separate Action. Borrower covenants and agrees not to, and hereby expressly
waives any right to, raise as a defense, affirmative defense, set off, recoupment or otherwise
against any Lender Party any claim arising from or relating to an alleged breach of this
Section 11.14 in any action, claim or proceeding relating to a breach of the Loan Documents
by Borrower or other action to enforce or recover the Obligations, and covenant and agree that any
claim against a Lender Party arising from or relating to an alleged breach of this Section
11.14 by a Lender Party shall only be asserted as an affirmative claim in a separate action
against the applicable Lender Party.




     11.15 Further Assurances. Borrower shall, at its expense and without expense to the
Lenders or the Administrative Agent, do, execute and deliver such further acts and documents as the
Requisite Lenders or the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Lenders or the Administrative Agent of the rights hereby created or
intended now or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.



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     11.16 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof. In the event of any conflict
between the provisions of this Agreement and those of any other Loan Document, the provisions of
this Agreement shall control and govern; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



     11.17 Governing Law. Except to the extent otherwise provided therein, each Loan
Document shall be governed by, and construed and enforced in accordance with, the Laws of the State
of New York without any regard to conflicts of law principles that would result in the application
of any Law other than the Laws of the State of New York.



     11.18 Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable or invalid as to any party or in any jurisdiction shall, as to that
party or jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining
provisions or the operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be
severable.



     11.19 Headings. Article and Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of this Agreement or the
other Loan Documents for any other purpose.



     11.20 Time of the Essence. Time is of the essence of the Loan Documents.



     11.21 Delivery of Tax Forms. Each Lender that is incorporated or otherwise organized
under the Laws of a jurisdiction other than the United States of America or any State thereof or
the District of Columbia shall deliver to Borrower (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two duly completed copies, signed
by a Responsible Official, of either Form W 8BEN (relating to such Lender and entitling it to a
complete exemption from withholding on all payments to be made to such Lender by Borrower pursuant
to this Agreement) or Form W 8ECI (relating to all payments to be made to such Lender by Borrower
pursuant to this Agreement), or W-8IMY, as applicable, of the United States of America Internal
Revenue Service or such other evidence satisfactory to Borrower and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to such Lender. If a
Lender is claiming a “portfolio interest exemption,” such Lender shall, in addition to Form W 8BEN,
provide a certificate signed by a Responsible Official to the effect that (i) such Lender is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) such Lender is not a 10%
shareholder of Borrower, and (iii) such Lender is not related to Borrower within the meaning of
Section 881(c)(3)(C) of the Code. Thereafter and from time to time, including before the
expiration of any previously delivered form, each such Lender shall (a) promptly submit to Borrower
(with a copy to the Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by the relevant United
States



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of America taxing authorities) as may then be required under then current United States of
America Laws and regulations to avoid, or such evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from, United States of America withholding taxes in
respect of all payments to be made to such Lender by Borrower pursuant to this Agreement and (b)
take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re designation of its LIBOR Lending
Office, if any) to avoid any applicable deduction or withholding for taxes from amounts payable to
such Lender. In the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial institution that
is incorporated or otherwise organized under the Laws of a jurisdiction other than the United
States of America, any State thereof or the District of Columbia, then, upon request made by
Borrower or the Administrative Agent to the Lender which granted such participation, such Lender
shall cause such participant financial institution to deliver the same documents and information to
Borrower and the Administrative Agent as would be required under this Section if such financial
institution were a Lender. Each Lender that is a United States of America Person shall, upon the
reasonable request of Borrower, deliver Form W-9 on or before the Closing Date (or on or before
accepting an assignment or receiving a participation pursuant to Section 11.8, if
applicable) and before the expiration of a previously delivered form.




     11.22 Hazardous Material Indemnity. Borrower hereby agrees to indemnify, hold harmless
and defend (by counsel reasonably satisfactory to the Administrative Agent) the Administrative
Agent and each of the Lenders and their Affiliates and their respective directors, officers,
employees, agents, successors and assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but not limited to reasonable attorneys’ fees
and the reasonably allocated costs of attorneys employed by the Administrative Agent or any Lender,
and expenses to the extent that the defense of any such action has not been assumed by Borrower),
arising directly or indirectly out of (i) the presence on, in, under or about any Projects of any
Hazardous Materials, or any releases or discharges of any Hazardous Materials on, under or from any
Projects and (ii) any activity carried on or undertaken on or off any Projects by Borrower or any
Loan Party or any of their predecessors in title, whether prior to or during the term of this
Agreement, and whether by Borrower or any predecessor in title or any employees, agents,
contractors or subcontractors thereof, or any third Persons at any time occupying or present on any
Project, in connection with the handling, treatment, removal, storage, decontamination, clean up,
transport or disposal of any Hazardous Materials at any time located or present on, in, under or
about any Project. The foregoing indemnity shall further apply to any residual contamination on,
in, under or about any Project, or affecting any natural resources, and to any contamination of any
Project or natural resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to Hazardous Materials on any Project, the presence of which is caused by
the Administrative Agent or the Lenders. Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or any of the other Loan Documents to the
contrary, the obligations of Borrower under this Section (and under Sections 4.17 and
5.10) shall be unlimited corporate



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obligations of Borrower and shall not be secured by any Lien on any Project. Any obligation
or liability of Borrower to any Indemnitee under this Section 11.22 shall survive the
expiration or termination of this Agreement and all Letters of Credit and the repayment of all
Loans and the payment and performance of all other Obligations owed to the Lenders.




     11.23 [Intentionally Omitted].



     11.24 Removal of a Lender. Borrower shall have the right to remove a Lender as a party
to this Agreement if (a) such Lender is paid a material amount by Borrower pursuant to Section
3.4 or Section 3.5, (b) any of the events described in Section 9.1(j) occurs
with respect to such Lender, or (c) such Lender becomes (and at the time of the proposed removal
hereunder remains) a Defaulting Lender hereunder. Upon notice from Borrower, such Lender shall
execute and deliver a Commitment Assignment and Acceptance covering that Lender’s Percentage of the
Commitments in favor of such Eligible Assignee as Borrower may designate with the approval of the
Administrative Agent, subject to payment in full by such Eligible Assignee of all principal,
interest and fees and any other amount owing to such Lender through the date of assignment. The
removal of any Defaulting Lender pursuant to this Section 11.24 shall not preclude Borrower
from pursuing all remedies available to it against such Defaulting Lender for damages arising out
of such Defaulting Lender’s breach hereof.



     11.25 Waiver Of Right To Trial By Jury. Each party to this
agreement hereby expressly waives any right to trial by jury of any claim, demand, action or cause
of action arising under any loan document or in any way connected with or related or incidental to
the dealings of the parties hereto or any of them with respect to any loan document, or the
transactions related thereto, in each case whether now existing or hereafter arising, and whether
sounding in contract or tort or otherwise; and each party hereby agrees and consents that any such
claim, demand, action or cause of action shall be decided by court trial without a jury, and that
any party to this agreement may file an original counterpart or a copy of this section with any
court as written evidence of the consent of the signatories hereto to the waiver of their right to
trial by jury.



     11.26 Purported Oral Amendments. Borrower expressly acknowledges
that this agreement and the other loan documents may only be amended or modified, or the provisions
hereof or thereof waived or supplemented, by an instrument in writing that complies with
section 12.1. Borrower agrees that it will not rely on any course of dealing, course of
performance, or oral or written statements by any representative of the administrative agent or any
Lender that does not comply with section 12.1 to effect an amendment, modification, waiver
or supplement to this agreement or the other loan documents.



     11.27 Replacement of Notes. Upon receipt of evidence reasonably satisfactory to
Borrower of the loss, theft, destruction or mutilation of any Note, and in the case of any such
loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory to
Borrower or, in the case of any such mutilation, upon surrender and cancellation of the applicable
Note, Borrower will execute and deliver, in lieu thereof, a replacement Note, identical in form and



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substance to the applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall be deemed to refer
to such replacement Note.




     11.28 Defaulting Lenders. In the event that any Lender becomes a Defaulting Lender,
then, in addition to any rights and remedies that may be available to Borrower or the other Lenders
and the Administrative Agent (such other Lenders and the Administrative Agent being called “Non
Defaulting Lenders”) at law or in equity:



          (a) The Defaulting Lender’s rights to participate in the administration of the Loan and the
Loan Documents, including any right to vote upon, approve, disapprove, consent to or direct any
action of the Administrative Agent (other than amendments to the Loan Documents directly affecting
the Defaulting Lender’s Commitment), shall be suspended and such rights shall not be reinstated
unless and until such Lender ceases to be a Defaulting Lender (and all decisions, except the
decision to remove the Administrative Agent, which are to be based on a vote of the Requisite
Lenders or all Lenders shall be resolved based upon a decision or determination made by the
required percentage of the Non-Defaulting Lenders); provided, however, that if the Administrative
Agent is a Defaulting Lender, the Administrative Agent shall continue to have all rights provided
for in this Loan Agreement, as the Administrative Agent only, with respect to the administration of
the Loan unless it is removed and replaced as the Administrative Agent as provided in Section
10.8.




          (b) Any or all of the Non-Defaulting Lenders shall be entitled (but shall not be obligated)
to: (i) fund the aggregate amount that the Defaulting Lender has failed to fund or pay to the
Administrative Agent (such amount being called the “Defaulted Amount”); and (ii) collect interest
at the Default Rate on the Defaulted Amount (after crediting all interest actually paid by Borrower
on the Defaulted Amount from time to time), either directly from the Defaulting Lender or from
amounts otherwise payable to the Defaulting Lender, for the period from the date on which the
Defaulted Amount was funded by the Non-Defaulting Lenders until the date on which payment is made.
If the Administrative Agent has funded the Defaulted Amount, the Administrative Agent shall be
entitled to collect interest at the Default Rate from the Defaulting Lender on the Defaulted Amount
as set forth above, as if the Administrative Agent were a Non-Defaulting Lender that had elected to
fund the Defaulted Amount.




          (c) In the event the Defaulted Amount is funded by any Non-Defaulting Lenders or the
Administrative Agent pursuant to Section 11.28(b) above, the Defaulting Lender’s interest
in the Loans, the Loan Documents and proceeds thereof shall be subordinated to any Defaulted Amount
funded by any Non-Defaulting Lenders or the Administrative Agent pursuant to Section
11.28(b) above, plus all interest which may be due in accordance with Section 11.28(b)
above (to be applied pari passu among the Non-Defaulting Lenders (including the Administrative
Agent, unless the Administrative Agent is the Defaulting Lender) funding the Defaulted Amount),
without necessity for executing any further documents; provided that such Defaulting Lender’s
interest in the Loan, the Loan Documents and the proceeds thereof shall no longer be so
subordinated if the Defaulted Amount funded by the Non-Defaulting Lenders or the Administrative
Agent (and all interest which has accrued pursuant to Section 11.28(b) above) shall be
repaid in full.




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          (d) If, following the payment in full of all amounts due pursuant to Section 11.28(c)
above to the Non-Defaulting Lenders (including the Administrative Agent, unless the Administrative
Agent is the Defaulting Lender) which have funded all or any portion of any Defaulted Amount, there
remains any unfunded Defaulted Amount which has not been funded by the Non-Defaulting Lenders, the
Administrative Agent or the Defaulting Lender (“Unfunded Defaulted Amount”), then a portion of the
Defaulting Lender’s interest in the Loan, the Loan Documents and the proceeds thereof equal to the
amount of the Unfunded Defaulted Amount (together with interest thereon at the rate applicable to the Defaulted Amount from time to
time pursuant to the Loan Documents) shall be subordinated to the interests of the Non-Defaulting
Lenders (including the Administrative Agent, unless the Administrative Agent is the Defaulting
Lender) unless and until such Unfunded Defaulted Amount is funded either by one or more Non
-Defaulting Lenders, the Administrative Agent or the Defaulting Lender.




          (e) Subject to the provisions of Section 11.8 and the definition of Eligible Assignee,
each Non-Defaulting Lender will have the right, but not the obligation, in its sole discretion, to
acquire at par all or a proportionate share (based on the ratio of its Commitments to the aggregate
amount of the Commitments of all of the Non-Defaulting Lenders that elect to acquire a share of the
Defaulting Lender’s Commitment) of the Defaulting Lender’s Commitment, including without limitation
its proportionate share in the outstanding principal balance of the Loan, and all rights and
interests of the Defaulting Lender under this Agreement and the other Loan Documents.




          (f) Nothing herein contained shall be deemed or construed to waive, diminish, limit, prevent
or estop the Administrative Agent, Borrower or any Lender from exercising or enforcing any rights
or remedies which may be available at law or in equity as a result of or in connection with any
default under this Agreement by a Lender (including the right to bring suit against the Defaulting
Lender to recover the Defaulted Amount and interest thereon at the rate provided in this
Section 11.28).




ARTICLE 12




AMENDMENTS; CONSENTS




     12.1 Amendments; Consents. No amendment, modification, supplement, extension,
termination or waiver of any provision of this Agreement or any other Loan Document, no approval or
consent thereunder, and no consent to any departure by Borrower or any other Loan Party therefrom,
may in any event be effective unless in writing signed by the Requisite Lenders (and, in the case
of any amendment, modification or supplement of or to any Loan Document to which Borrower or any
other Loan Party is a party, signed by each such party, and, in the case of any amendment,
modification or supplement to Section 3.2 or Article 10, signed by the
Administrative Agent), and then only in the specific instance and for the specific purpose given;
and, without the approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:



          (a) To amend, modify, forgive, reduce or waive the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on, any Note, or the amount of the




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Aggregate Line Commitment, the Aggregate Term Commitment or the Percentage of any Lender (except with respect
to increases in the Aggregate Commitment up to $1,000,000,000, and the related possible
establishment of the Term Facility, as specifically provided for herein) or the amount of any
commitment fee payable to any Lender, or any other fee or amount payable to any Lender under the
Loan Documents or to waive an Event of Default consisting of the failure of Borrower to pay when
due principal, interest or any fee;




          (b) To postpone any date fixed for any payment of principal of, prepayment of principal of or
any installment of interest on, any Note or any installment of any fee, or to extend the term of
the Commitments (other than pursuant to Section 2.10);




          (c) To amend the provisions of the definition of “Requisite Lenders” or “Maturity Date”;




          (d) To amend or waive this Section 12.1;




          (e) To amend any provision of this Agreement that expressly requires the consent or approval
of all of the Lenders to require a lesser number of Lenders to approve such action;




          (f) To release Borrower or any Guarantor, except as specifically provided in connection with
the release of a Project from the Unencumbered Pool; or




          (g) To change the manner of distribution of any payments to the Lenders or the Administrative
Agent.




     No amendment, modification, supplement, extension, termination or waiver or consent may be
effective to require a Lender to fund more than its Percentage of a Request for an Advance, a Swing
Loan or a Letter of Credit without the approval of any Lender affected thereby. There shall be no
amendment, modification or waiver of any provisions in the Loan Documents with respect to Swing
Loans without the consent of the Swing Loan Lender and there shall be no amendment, modification or
waiver of any provisions in the Loan Documents with respect to Letters of Credit without the
consent of the Administrative Agent. Any amendment, modification, supplement, termination, waiver
or consent pursuant to this Section 12.1 shall apply equally to, and shall be binding upon,
all the Lenders and the Administrative Agent.




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     IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated
Unsecured Credit Agreement to be duly executed as of the date first above written.



	 	 	 	 	 	 
	 	BORROWER:



BIOMED REALTY, L.P., a Maryland limited partnership

 
	 	By: 	BioMed Realty Trust, Inc., its sole general

partner

 
	 	 	By:  	/s/ KENT GRIFFIN
 	 
	 	 	 	Name:  	Kent Griffin 	 
	 	 	 	Title:  	CFO 	 
	 
	 	Address:



BioMed Realty, L.P.

17140 Bernardo Center Drive, Suite 222

San Diego, California 92128





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	 	ADMINISTRATIVE AGENT:



KEYBANK NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent

 	 
	 	By:  	/s/ SCOTT CHILDS
 	 
	 	 	Name:  	Scott Childs 	 
	 	 	Title:  	Vice President 	 
	 
	 



	 	 	 	 	 
	 	LENDERS:



KEYBANK NATIONAL ASSOCIATION, a national banking
association

 	 
	 	By:  	/s/ SCOTT CHILDS
 	 
	 	 	Name:  	Scott Childs 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	U.S. BANK NATIONAL ASSOCIATION,

a national banking association

 	 
	 	By:  	/s/ NICOLE K. WRIGHT
 	 
	 	 	Name:  	Nicole K. Wright 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	SOCIETE GENERALE

 	 
	 	By:  	/s/ DON P. MASON
 	 
	 	 	Name:  	Don P. Mason 	 
	 	 	Title:  	Managing Director 	 
	 
	 



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	 	LASALLE BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ JANET K. LEE
 	 
	 	 	Name:  	Janet K. Lee 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	CHARTER ONE BANK, N.A., a national banking association

 	 
	 	By:  	/s/ MICHAEL L. KAUFFMAN
 	 
	 	 	Name:  	Michael L. Kauffman 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 




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	 	WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ CYNTHIA A. BEAN
 	 
	 	 	Name:  	Cynthia A. Bean 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	TD BANKNORTH, N.A.

 	 
	 	By:  	/s/ MEGHAN E. BELL
 	 
	 	 	Name:  	Meghan E. Bell 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ DANIEL LEPAGE
 	 
	 	 	Name:  	Daniel LePage 	 
	 	 	Title:  	Managing Director 	 
	 
	 



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	 	SOVEREIGN BANK

 	 
	 	By:  	/s/ T. GREGORY DONOHUE
 	 
	 	 	Name:  	T. Gregory Donohue 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 



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	 	NATIONAL CITY BANK

 	 
	 	By:  	/s/ SEAN APICELLA
 	 
	 	 	Name:  	Sean Apicella 	 
	 	 	Title:  	AVP 	 
	 
	 



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	 	RAYMOND JAMES BANK, FSB

 	 
	 	By:  	/s/ THOMAS G. SCOTT
 	 
	 	 	Name:  	Thomas G. Scott 	 
	 	 	Title:  	Vice President 	 
	 
	 


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	 	MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD., NEW YORK
BRANCH

 	 
	 	By:  	/s/ DOUGLAS HSU
 	 
	 	 	Name:  	Douglas Hsu 	 
	 	 	Title:  	Vice President and Deputy General Manager 	 
	 
	 



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	 	COMERICA BANK

 	 
	 	By:  	/s/ JAMES GRAYCHECK
 	 
	 	 	Name:  	James Graycheck 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	COMPASS BANK, an Alabama banking corporation

 	 
	 	By:  	/s/ JOHANNA DUKE PALEY
 	 
	 	 	Name:  	Johanna Duke Paley 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 



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	 	MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

 
	 	By: 	Babson Capital Management LLC

Its Authorized Agent

 
	 	 	By:  	/s/ RICHARD F. MCKEEVER
 	 
	 	 	 	Title  	Managing Director 	 
	 	 	 	Name:  	Richard F. McKeever 	 
	 
	 



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	 	PB CAPITAL CORPORATION

 	 
	 	By:  	/s/ MICHAEL J. ROGERS
 	 
	 	 	Name:  	Michael J. Rogers 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/ ANN S. WILHELM
 	 
	 	 	Name:  	Ann S. Wilhelm 	 
	 	 	Title:  	Senior Director 	 
	 
	 



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	 	ARTESIA MORTGAGE CAPITAL CORPORATION

 	 
	 	By:  	/s/ BRIAN COFFEE
 	 
	 	 	Name:  	Brian Coffee 	 
	 	 	Title:  	Managing Director 	 
	 
	 



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	 	PEOPLE’S UNITED BANK

 	 
	 	By:  	/s/ DAVID A. LEWIS, JR.
 	 
	 	 	Name:  	David A. Lewis, Jr. 	 
	 	 	Title:  	Vice President 	 
	 
	 



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	 	NORDDEUTSCHE LANDESBANK LUXEMBOURG S.A.

 	 
	 	By:  	/s/ DIRK ZIEMEL
 	 
	 	 	Name:  	Dirk Ziemel 	 
	 	 	Title:  	Vice President 	 
	 
	 	and




	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/ KLADINE LUDER
 	 
	 	 	Name:  	Kladine Luder 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 



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	 	WESTDEUTSCHE IMMOBILIENBANK AG

 	 
	 	By:  	/s/ MICHAELA BUDDE
 	 
	 	 	Name:  	Michaela Budde 	 
	 	 	Title:  	 	 
	 
	 



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	 	CREDIT SUISSE

 	 
	 	By:  	/s/ CASANDRA DROOGAN
 	 
	 	 	Name:  	Cassandra Droogan 	 
	 	 	Title:  	Vice President 	 
	 
	 



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