Exhibit 10.1


Published CUSIP Number:                 


$2,750,000,000


CREDIT AGREEMENT


Dated as of August 1, 2007


among


HEALTH CARE
PROPERTY
INVESTORS, INC.,


as Borrower


THE LENDERS PARTY HERETO FROM TIME TO TIME,


BANK OF AMERICA, N.A.,


as Administrative Agent,


BANC OF AMERICA SECURITIES LLC,


BARCLAYS BANK PLC and


UBS SECURITIES LLC,


as Joint Lead Arrangers


BANC OF
AMERICA SECURITIES LLC,


BARCLAYS CAPITAL and


UBS
SECURITIES LLC,


as Joint Bookrunners


UBS SECURITIES LLC,


as Syndication Agent


and


BARCLAYS BANK PLC,


JPMORGAN CHASE BANK, N.A. and


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents


Moore & Van Allen PLLC


100
North Tryon Street, Suite 4700


Charlotte, North Carolina  28202


















TABLE OF CONTENTS


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I   DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
  1.01

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.02

  	
   

  	
  Other Interpretive Provisions

  	
   

  	
  21

  
	
  1.03

  	
   

  	
  Accounting Terms

  	
   

  	
  22

  
	
  1.04

  	
   

  	
  Rounding

  	
   

  	
  22

  
	
  1.05

  	
   

  	
  Times of Day

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II   THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
   

  	
  23

  
	
  2.01

  	
   

  	
  Loans

  	
   

  	
  23

  
	
  2.02

  	
   

  	
  Borrowings, Conversions and Continuations of Loans

  	
   

  	
  23

  
	
  2.03

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  24

  
	
  2.04

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  24

  
	
  2.05

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  24

  
	
  2.06

  	
   

  	
  Prepayments

  	
   

  	
  24

  
	
  2.07

  	
   

  	
  Termination or Reduction of Commitments

  	
   

  	
  25

  
	
  2.08

  	
   

  	
  Repayment

  	
   

  	
  25

  
	
  2.09

  	
   

  	
  Interest

  	
   

  	
  26

  
	
  2.10

  	
   

  	
  Fees

  	
   

  	
  26

  
	
  2.11

  	
   

  	
  Computation of Interest and Fees

  	
   

  	
  27

  
	
  2.12

  	
   

  	
  Evidence of Debt

  	
   

  	
  27

  
	
  2.13

  	
   

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  27

  
	
  2.14

  	
   

  	
  Sharing of Payments by Lenders

  	
   

  	
  29

  
	
  2.15

  	
   

  	
  Extension of Maturity Date

  	
   

  	
  30

  
	
  2.16

  	
   

  	
  [Intentionally Omitted].

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III   TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
   

  	
  31

  
	
  3.01

  	
   

  	
  Taxes

  	
   

  	
  31

  
	
  3.02

  	
   

  	
  Illegality

  	
   

  	
  33

  
	
  3.03

  	
   

  	
  Inability to Determine Rates

  	
   

  	
  33

  
	
  3.04

  	
   

  	
  Increased Costs; Reserves on Eurodollar Rate Loans

  	
   

  	
  34

  
	
  3.05

  	
   

  	
  Compensation for Losses

  	
   

  	
  35

  
	
  3.06

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  36

  
	
  3.07

  	
   

  	
  Survival

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV   CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
   

  	
  36

  
	
  4.01

  	
   

  	
  Conditions of Initial Credit Extension

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V   REPRESENTATIONS AND WARRANTIES

  	
   

  	
  38

  
	
  5.01

  	
   

  	
  Existence, Qualification and Power; Compliance with
  Laws

  	
   

  	
  38

  
	
  5.02

  	
   

  	
  Authorization; No Contravention

  	
   

  	
  39

  
	
  5.03

  	
   

  	
  Governmental Authorization; Other Consents

  	
   

  	
  39

  
	
  5.04

  	
   

  	
  Binding Effect

  	
   

  	
  39

  
	
  5.05

  	
   

  	
  Financial Statements; No Material Adverse Effect

  	
   

  	
  39

  



 



 i
 









 


	
  5.06

  	
   

  	
  Litigation

  	
   

  	
  40

  
	
  5.07

  	
   

  	
  No Default

  	
   

  	
  40

  
	
  5.08

  	
   

  	
  Ownership of Property; Liens; Leases

  	
   

  	
  40

  
	
  5.09

  	
   

  	
  Environmental Compliance

  	
   

  	
  41

  
	
  5.10

  	
   

  	
  Insurance

  	
   

  	
  41

  
	
  5.11

  	
   

  	
  Taxes

  	
   

  	
  41

  
	
  5.12

  	
   

  	
  ERISA Compliance

  	
   

  	
  42

  
	
  5.13

  	
   

  	
  Margin Regulations; Investment Company Act; REIT
  Status

  	
   

  	
  42

  
	
  5.14

  	
   

  	
  Disclosure

  	
   

  	
  42

  
	
  5.15

  	
   

  	
  Compliance with Laws

  	
   

  	
  43

  
	
  5.16

  	
   

  	
  Intellectual Property; Licenses, Etc.

  	
   

  	
  43

  
	
  5.17

  	
   

  	
  Use of Proceeds

  	
   

  	
  43

  
	
  5.18

  	
   

  	
  Taxpayer Identification Number.

  	
   

  	
  43

  
	
  5.19

  	
   

  	
  Acquisition Documents.

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI   AFFIRMATIVE COVENANTS

  	
   

  	
  44

  
	
  6.01

  	
   

  	
  Financial Statements

  	
   

  	
  44

  
	
  6.02

  	
   

  	
  Certificates; Other Information

  	
   

  	
  45

  
	
  6.03

  	
   

  	
  Notices.

  	
   

  	
  47

  
	
  6.04

  	
   

  	
  Payment of Obligations

  	
   

  	
  47

  
	
  6.05

  	
   

  	
  Preservation of Existence, Etc.

  	
   

  	
  48

  
	
  6.06

  	
   

  	
  Maintenance of Properties

  	
   

  	
  48

  
	
  6.07

  	
   

  	
  Maintenance of Insurance.

  	
   

  	
  48

  
	
  6.08

  	
   

  	
  Compliance with Laws.

  	
   

  	
  49

  
	
  6.09

  	
   

  	
  Books and Records.

  	
   

  	
  49

  
	
  6.10

  	
   

  	
  Inspection Rights.

  	
   

  	
  49

  
	
  6.11

  	
   

  	
  Use of Proceeds.

  	
   

  	
  49

  
	
  6.12

  	
   

  	
  REIT Status.

  	
   

  	
  49

  
	
  6.13

  	
   

  	
  Employee Benefits.

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII   NEGATIVE COVENANTS

  	
   

  	
  50

  
	
  7.02

  	
   

  	
  Investments.

  	
   

  	
  51

  
	
  7.03

  	
   

  	
  Indebtedness.

  	
   

  	
  51

  
	
  7.04

  	
   

  	
  Fundamental Changes

  	
   

  	
  52

  
	
  7.05

  	
   

  	
  Dispositions.

  	
   

  	
  52

  
	
  7.06

  	
   

  	
  Restricted Payments.

  	
   

  	
  52

  
	
  7.07

  	
   

  	
  Change in Nature of Business.

  	
   

  	
  52

  
	
  7.08

  	
   

  	
  Transactions with Affiliates.

  	
   

  	
  52

  
	
  7.09

  	
   

  	
  Burdensome Agreements.

  	
   

  	
  53

  
	
  7.10

  	
   

  	
  Financial Covenants.

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII   EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  54

  
	
  8.01

  	
   

  	
  Events of Default.

  	
   

  	
  54

  
	
  8.02

  	
   

  	
  Remedies Upon Event of Default.

  	
   

  	
  56

  
	
  8.03

  	
   

  	
  Application of Funds.

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX   ADMINISTRATIVE AGENT

  	
   

  	
  58

  



 



 ii
 









 


	
  9.01

  	
   

  	
  Appointment and Authority.

  	
   

  	
  58

  
	
  9.02

  	
   

  	
  Rights as a Lender.

  	
   

  	
  58

  
	
  9.03

  	
   

  	
  Exculpatory Provisions.

  	
   

  	
  58

  
	
  9.04

  	
   

  	
  Reliance by Administrative Agent.

  	
   

  	
  59

  
	
  9.05

  	
   

  	
  Delegation of Duties.

  	
   

  	
  59

  
	
  9.06

  	
   

  	
  Resignation of Administrative Agent.

  	
   

  	
  60

  
	
  9.07

  	
   

  	
  Non-Reliance on Administrative Agent and Other
  Lenders.

  	
   

  	
  60

  
	
  9.08

  	
   

  	
  No Other Duties, Etc.

  	
   

  	
  61

  
	
  9.09

  	
   

  	
  Administrative Agent May File Proofs of Claim.

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X   MISCELLANEOUS

  	
   

  	
  62

  
	
  10.01

  	
   

  	
  Amendments, Etc.

  	
   

  	
  62

  
	
  10.02

  	
   

  	
  Notices; Effectiveness; Electronic Communication.

  	
   

  	
  63

  
	
  10.03

  	
   

  	
  No Waiver; Cumulative Remedies.

  	
   

  	
  64

  
	
  10.04

  	
   

  	
  Expenses; Indemnity; Damage Waiver.

  	
   

  	
  65

  
	
  10.05

  	
   

  	
  Payments Set Aside.

  	
   

  	
  66

  
	
  10.06

  	
   

  	
  Successors and Assigns.

  	
   

  	
  67

  
	
  10.07

  	
   

  	
  Treatment of Certain Information; Confidentiality.

  	
   

  	
  71

  
	
  10.08

  	
   

  	
  Right of Setoff.

  	
   

  	
  71

  
	
  10.09

  	
   

  	
  Interest Rate Limitation.

  	
   

  	
  72

  
	
  10.10

  	
   

  	
  Counterparts; Integration; Effectiveness.

  	
   

  	
  72

  
	
  10.11

  	
   

  	
  Survival of Representations and Warranties.

  	
   

  	
  72

  
	
  10.12

  	
   

  	
  Severability.

  	
   

  	
  73

  
	
  10.13

  	
   

  	
  Replacement of Lenders.

  	
   

  	
  73

  
	
  10.14

  	
   

  	
  Governing Law; Jurisdiction; Etc.

  	
   

  	
  74

  
	
  10.15

  	
   

  	
  Waiver of Jury Trial.

  	
   

  	
  75

  
	
  10.16

  	
   

  	
  No Advisory or Fiduciary Responsibility.

  	
   

  	
  75

  
	
  10.17

  	
   

  	
  USA Patriot Act Notice.

  	
   

  	
  76

  
	
  10.18

  	
   

  	
  Delivery of Signature Page.

  	
   

  	
  76

  



 



 iii
 









 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments and Applicable
  Percentages

  	
   

  	
   

  
	
  10.02

  	
  Administrative Agent’s
  Office; Certain Addresses for Notices

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Form
  of

  	
   

  	
   

  
	
  A

  	
  Bridge Loan Notice

  	
   

  	
   

  
	
  B

  	
  Note

  	
   

  	
   

  
	
  C

  	
  Compliance Certificate

  	
   

  	
   

  
	
  D

  	
  Assignment and Assumption

  	
   

  	
   

  
	
  E

  	
  Opinions

  	
   

  	
   

  



 



 iv















 


CREDIT AGREEMENT


This CREDIT AGREEMENT, dated as of August 1, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, this “Agreement”),
among HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the “Borrower”),
the lending institutions party hereto from time to time (each, a “Lender”
and collectively, the “Lenders”), BANK OF AMERICA, N.A., as
Administrative Agent, BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger
and Joint Bookrunner, BARCLAYS CAPITAL, as Joint Lead Arranger, Joint
Bookrunner and Co-Documentation Agent, UBS SECURITIES LLC, as Joint Lead
Arranger, Joint Bookrunner and Syndication Agent, JPMORGAN CHASE BANK, N.A., as
Co-Documentation Agent, and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent.


WHEREAS, the Borrower has requested that the Lenders
provide a bridge loan facility, and the Lenders are willing to do so on the
terms and conditions set forth herein.


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


ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS


1.01        Defined
Terms.


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


“Acquired Business” means Slough Estates USA, Inc., a Delaware
corporation.


“Acquisition” means the acquisition of all of the capital stock
or other Equity Interests of the Acquired Business.


“Acquisition Documents” means the collective
reference to the Purchase Agreement, each amendment or supplement thereto and
each other agreement entered into in connection therewith relating to the
Acquisition.


“Administrative Agent” means Bank of America
in its capacity as administrative agent under any of the Loan Documents, or any
successor administrative agent.


“Administrative Agent’s Office” means the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02,
or such other address or account as the Administrative Agent may from time to
time notify to the Borrower and the Lenders.


“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by the Administrative Agent.













“Affiliate” means, with respect to any
Person, another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.


“Agents” means the Administrative Agent, the
Arrangers, the Bookrunners, the Syndication Agent and the Documentation Agents.


“Aggregate Commitments” means the Commitments
of all Lenders.  The Aggregate
Commitments on the Closing Date are $2,750,000,000.


“Agreement” means this Credit Agreement.


“Applicable Percentage” means, for each
Lender at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of such Lender’s
Commitment at such time and the denominator of which is the amount of the
Aggregate Commitments at such time.  The
initial Applicable Percentages of each Lender are set forth opposite the name
of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


“Applicable Rate” means, for Loans, from time
to time, the number of basis points per annum set forth in the following table
based upon the Debt Rating as set forth below:




	
  Pricing Level

  	
   

  	
  Debt Ratings

  	
   

  	
  Applicable

  Rate for

  Eurodollar

  Rate Loans

  	
   

  	
  Applicable

  Rate for Base

  Rate Loans

  	
   

  
	
  1

  	
   

  	
  3A- from S&P/ 3A3
  from Moody’s

  	
   

  	
  42.5 bps

  	
   

  	
  0 bps

  	
   

  
	
  2

  	
   

  	
  3BBB+ from
  S&P/ 3Baa1 from Moody’s

  	
   

  	
  52.5 bps

  	
   

  	
  0 bps

  	
   

  
	
  3

  	
   

  	
  3BBB from S&P/
  3Baa2
  from Moody’s

  	
   

  	
  70 bps

  	
   

  	
  0 bps

  	
   

  
	
  4

  	
   

  	
  3BBB- from
  S&P/ 3Baa3 from Moody’s

  	
   

  	
  95 bps

  	
   

  	
  0 bps

  	
   

  






 



 2
 









 




	
  Pricing Level

  	
   

  	
  Debt Ratings

  	
   

  	
  Applicable

  Rate for

  Eurodollar

  Rate Loans

  	
   

  	
  Applicable

  Rate for Base

  Rate Loans

  	
   

  
	
  5

  	
   

  	
  <BBB- from S&P/
  <Baa3 from Moody’s or nonrated by both S&P and Moody’s

  	
   

  	
  125 bps

  	
   

  	
  0 bps

  	
   

  






 


“Debt
Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”) of the
Borrower’s non-credit enhanced, senior unsecured long-term debt; provided
that if a Debt Rating is issued by each of the foregoing rating agencies, then
the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing
Level 1 being the highest and the Debt Rating for Pricing Level 5 being the
lowest), unless there is a split in Debt Ratings of more than one level, in
which case the Pricing Level that is one level higher than the Pricing Level of
the lower Debt Rating shall apply.


Initially, the Applicable Rate shall be determined
based upon the Debt Rating specified in the certificate delivered pursuant to Section
4.01(a)(vi).  Thereafter, each change
in the Applicable Rate shall occur on the first Business Day following the
effective change in the Debt Rating.


“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


“Arrangers” means Banc of America Securities
LLC and UBS Securities LLC, each in its capacity as joint lead arranger and
joint bookrunner.


“Assignee Group” means two or more Eligible
Assignees that are Affiliates of one another or two or more Approved Funds
managed by the same investment advisor.


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the
form of Exhibit D or any other form approved by the Administrative
Agent.


“Attributable Indebtedness” means, on any
date, (a) in respect of any capital lease of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease were accounted for as a
capital lease.



 3
 









“Audited Financial Statements” means the
audited consolidated balance sheet of the Borrower and its Subsidiaries for the
fiscal year ended December 31, 2006, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal year
of the Borrower and its Subsidiaries, including the notes thereto.


“Bank Loan Agreement” means the credit
agreement, dated as of August 1, 2007 (as amended, restated, supplemented or
otherwise modified from time to time), among the Borrower, as borrower, the
lenders party thereto from time to time, Bank of America, N.A., as
administrative agent, swingline lender and letter of credit issuer, Banc of America
Securities LLC, as joint lead arranger and joint bookrunner, UBS Securities
LLC, as joint lead arranger, joint bookrunner and syndication agent, Barclays
Capital, as joint bookrunner and co-documentation agent, Citicorp North
America, Inc., as co-documentation agent, Credit Suisse, Cayman Islands Branch,
as co-documentation agent, Goldman Sachs Credit Partners L.P., as
co-documentation agent, JPMorgan Chase Bank, N.A., as co-documentation agent,
Wachovia Bank, National Association, as co-documentation agent, Wells Fargo
Bank, N.A., as co-documentation agent, The Bank of Nova Scotia, as senior
managing agent,  Calyon New York Branch, as senior managing agent, Key Bank National Association,
as senior managing agent, Merrill Lynch Bank USA, as senior managing agent, The
Royal Bank of Scotland plc, as senior managing agent, and SunTrust Bank, as
senior managing agent.


“Bank of America” means Bank of America, N.A.
and its successors.


“Base Rate” means for any day a fluctuating
rate per annum equal to the higher of (a) the Federal Funds Rate plus 1⁄2 of 1%
and (b) the rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate.”  The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
rate announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.


“Base Rate Loan” means a Loan that bears
interest based on the Base Rate.


“Bookrunners” means Banc of America
Securities LLC, UBS Securities LLC and Barclays Capital each in its capacity as
joint bookrunner.


“Borrower” has the meaning specified in the
introductory paragraph hereto.


“Borrower Material” has the meaning specified
in Section 6.02.


“Borrowing” means a borrowing consisting of
simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.



 4
 









“Bridge Loan Notice” means a notice of
(a) a Borrowing, (b) a conversion of Loans from one Type to the other
or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.


“Business Day” means any day other than a
Saturday, Sunday or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the Administrative
Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.


“Change in Law” means the occurrence, after
the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.


“Change of Control”
means an event or series of events by which:


(a)           any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire
(such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 35%
or more of the equity securities of the Borrower entitled to vote for members
of the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or


(b)           during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting
at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board
or other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that
board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors).



 5
 









“Closing Date” means the first date all the
conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.


“Closing Date Material Adverse Effect” means
the occurrence since June 3, 2007 of any circumstance, change in or effect on
the Acquired Business or its Subsidiaries that, when considered either alone or
in combination, (a) is materially adverse to the assets, results of operations
or the financial condition of the Acquired Business and its Subsidiaries, taken
as a whole, or (b) prevents, materially impairs or materially delays the
Acquired Business’ ability to consummate any of the transactions contemplated
by the Purchase Agreement; provided, however, that none of the
following, either alone or in combination, shall be considered in determining
whether there has been a Closing Date Material Adverse Effect:  (i) general economic conditions in any of the
markets or geographical areas in which the Acquired Business or any of its Subsidiaries
operate (including the real estate market); (ii) any change in the United
States’ financial, banking or capital markets in general; (iii) any calamity or
other conditions generally affecting any of the industries in which the
Acquired Business and its Subsidiaries operate (including the real estate
market); (iv) acts of God or other calamities, national or international
political or social conditions, including the engagement by any country in
hostilities, whether commenced before or after the date hereof, and whether or
not pursuant to the declaration of a national emergency or war, or the occurrence
of any military or terrorist attack; (v) changes in law or in GAAP or
interpretations thereof, except, in the case of any event described in
subclauses (i), (ii), (iii), (iv) and (v) above, to the extent such event materially
and disproportionately affects the Acquired Business and its Subsidiaries,
taken as a whole, relative to that of the competitors of the Acquired Business
and its Subsidiaries; and (vi) the announcement of, or the taking of any action
contemplated by, the Purchase Agreement and the other agreements contemplated
hereby.


“Code” means the Internal Revenue Code of
1986.


“Commitment” means, as to each Lender, its
obligation to make Loans to the Borrower pursuant to Section 2.01 in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


“Compliance Certificate” means a certificate
substantially in the form of Exhibit C.


“Consolidated EBITDA” means the sum of (a)
EBITDA of the Borrower and its Subsidiaries on a consolidated basis plus (b)
without duplication, the Borrower’s Pro Rata Share of EBITDA of each Material
Joint Venture.


“Consolidated Fixed Charges” means, with
respect to the Borrower and its Subsidiaries on a consolidated basis, the sum
of (a) Consolidated Interest Expense plus (b) Scheduled Principal Payments plus
(c) dividends and distributions in respect of preferred stock (but excluding redemption
payments or charges in connection with the redemption of preferred stock) of
the Borrower and its Subsidiaries.



 6
 









“Consolidated Intangible Assets” means an
amount equal to the Intangible Assets of the Borrower and its Subsidiaries on a
consolidated basis.


“Consolidated Interest Expense” means the sum
of (a) Interest Expense of the Borrower and its Subsidiaries on a consolidated
basis plus (b) without duplication, the Borrower’s Pro Rata Share of Interest
Expense of each Material Joint Venture.


“Consolidated Shareholders’ Equity” means, as
of any date of determination, consolidated shareholders’ equity of the Borrower
and its Subsidiaries, as determined in accordance with GAAP.


“Consolidated Tangible Net Worth” means, as
of any date of determination, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to (a) Consolidated Shareholders’ Equity on
such date minus (b) Consolidated Intangible Assets on such date.


“Consolidated Total Asset Value” means the
sum of (a) Total Asset Value of the Borrower and its Subsidiaries on a
consolidated basis plus (b) without duplication, the Borrower’s Pro Rata Share
of Total Asset Value of each Material Joint Venture.


“Consolidated Total Indebtedness” means the
sum of (a) Indebtedness of the Borrower and its Subsidiaries on a consolidated
basis plus (b) without duplication, the Borrower’s Pro Rata Share
of Indebtedness of each Material Joint Venture; provided that Consolidated
Total Indebtedness shall not include security deposits, accrued liabilities or
prepaid rent, each as defined in accordance with GAAP.


“Consolidated Unencumbered Asset Value” means
the sum of (a) Unencumbered Asset Value of the Borrower and the Borrower’s
Pro Rata Share of Unencumbered Asset Value of its Subsidiaries on a
consolidated basis plus (b) without duplication, the Borrower’s Pro
Rata Share of Unencumbered Asset Value of each Material Joint Venture.


“Contractual Obligation” means, as to any
Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.  “Controlling”
and “Controlled” have meanings correlative thereto.


“Credit Extension” means a Borrowing.


“Debt Rating” has the meaning specified in
the definition of “Applicable Rate.”


“Debtor Relief Laws” means the Bankruptcy
Code of the United States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, 



 7
 









rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


“Default” means any event or condition that
constitutes an Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.


“Default Rate” means an interest rate equal
to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable
to Base Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum.


“Defaulting Lender” means any Lender that (a)
has failed to fund any portion of the Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


“Development Property” means any real
property in which the development and construction with respect thereto are not
complete.


“Disposition” or “Dispose” means the
sale, transfer or assignment (including any sale and leaseback transaction) of
any property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, in any case other than sales or other
dispositions of assets in the ordinary course of business.


“Documentation Agent” means each of Barclays
Bank PLC, JPMorgan Chase Bank, N.A., and Wachovia Bank, National Association,
in their capacity as Co-Documentation Agents.


“Dollar” and “$” mean lawful money of
the United States.


“Domestic Subsidiary” means any Subsidiary
that is organized under the laws of any political subdivision of the United
States.


“EBITDA” means, for any period, for a Person
and its Subsidiaries on a consolidated basis, an amount equal to the Net Income
of such Person and its Subsidiaries for such period plus (a) the following
to the extent deducted in calculating such Net Income:  (i) Consolidated Interest Expense for such
period, (ii) the provision for Federal, state, local and foreign income taxes
payable by such Person and its Subsidiaries for such period, (iii) depreciation
and amortization expense for such period and (iv) expenses of such Person and
its Subsidiaries reducing such Net Income during such period which do not
represent a cash expenditure in such period or any prior or future period and minus
(b) all items of such Person and its Subsidiaries increasing Net 



 8
 









Income for such period which do not represent a cash receipt in such period
or any prior or future period.


“Eligible Assignee” means any Person that
meets the requirements to be an assignee under Section 10.06(b)(iii),
(v) and (vi) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).


“Environmental Laws” means any and all
Federal, state, local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.


“Environmental Liability” means any
liability, contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of the Borrower
or any of its Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


“Equity Interests” means, with respect to any
Person, all of the shares of capital stock of (or other ownership or profit
interests in) such Person and all of the warrants or options for the purchase
or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person.


“ERISA” means the Employee Retirement Income
Security Act of 1974.


“ERISA Affiliate” means any trade or business
(whether or not incorporated) under common control with the Borrower within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the Code).


“ERISA Event” means (a) a Reportable Event
with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that
a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any 



 9
 









liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.


“Eurodollar Rate” means, for any Interest
Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time
for any reason, then the “Eurodollar Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America’s London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the commencement
of such Interest Period.


“Eurodollar Rate Loan” means a Loan that
bears interest at a rate based on the Eurodollar Rate.


“Event of Default” has the meaning specified
in Section 8.01.


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder,
(a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or
is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 3.01(e), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.01(a).


“Existing Credit Agreement” means that
certain Credit Agreement, dated as of October 5, 2006, among the Borrower,
guarantors party thereto, Bank of America, N.A., as administrative agent, swing
line lender, and issuing bank, and the lenders party thereto.


“Existing Maturity Date” has the meaning set
forth in Section 2.15.



 10
 









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


“Fee Letter” means the Bridge Facility Fee
Letter, dated June 3, 2007, among the Borrower, Bank of America, N.A., Banc of
America Securities LLC, UBS Loan Finance LLC and UBS Securities LLC.


“Fixed Charge Coverage Ratio” means, on the
last day of any fiscal quarter, the ratio of (a) Consolidated EBITDA for the
twelve month period ending on such date to (b) Consolidated Fixed Charges for
the twelve month period ending on such date.


“Foreign Lender” means any Lender that is
organized under the laws of a jurisdiction other than that in which the
Borrower is a resident for tax purposes. 
For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


“Foreign Subsidiary” shall mean a Subsidiary
that is organized under the laws of a jurisdiction other than the United States
or any state thereof or the District of Columbia.


“FRB” means the Board of Governors of the
Federal Reserve System of the United States.


“Fund” means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its activities.


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


“Governmental Authority” means the government
of the United States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to 



 11
 









government (including any supranational bodies such as the European
Union or the European Central Bank).


“Granting Lender” has the meaning set forth
in Section 10.06(h).


“Guarantee” means, as to any Person, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other obligation
is assumed by such Person (or any right, contingent or otherwise, of any holder
of such Indebtedness to obtain any such Lien). 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


“Hazardous Materials” means all explosive or
radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


“Indebtedness” means,
as to any Person, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:


(a)           all obligations of such Person for
borrowed money, whether secured or unsecured, and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments including, without limitation, recourse and non-recourse mortgage
debt;


(b)           all direct or contingent obligations
of such Person arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;


(c)           aggregate net obligations of such
Person under Swap Contracts;


 



 12















 


(d)           all obligations of such Person to pay
the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business);


(e)           indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse, to the extent of the value of
the property encumbered by such Lien;


(f)            capital leases and Synthetic Lease
Obligations;


(g)           all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Equity Interest in such Person at any time prior to the date that is six
months after the Maturity Date, valued, in the case of a redeemable preferred
interest, at the liquidation preference thereof; and


(h)           all Guarantees of such Person in
respect of any of the foregoing.


For all purposes hereof, (i) the amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date (which shall be a positive number if
such amount would be owed by the Borrower and a negative number if such amount
would be owed to the Borrower) and the net obligations under Swap Contacts
shall not be less than zero, and (ii) the amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


“Indemnitee” has the meaning specified in Section
10.04(b).


“Initial Maturity Date” has the meaning set
forth in the definition of Maturity Date.


“Intangible Assets” means assets of a Person
and its Subsidiaries that are classified as intangible assets under GAAP, but
excluding interests in real estate that are classified as intangible assets in
accordance with GAAP.


“Interest Expense” means, for any period, for
a Person and its Subsidiaries on a consolidated basis, the sum of all (a)
interest expense for such period determined in accordance with GAAP (but excluding
any charges resulting from settlement of options to repurchase remarketable
bonds) and (b) interest that is capitalized in such period in accordance with
GAAP.


“Interest Payment Date” means, (a) as to any
Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a Eurodollar Rate Loan exceeds three months,
the respective dates



 13
 









 


that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan,
the last Business Day of each calendar quarter and the Maturity Date.


“Interest Period” means, as to each
Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate
Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending
on the date one, two, three or six months (or if agreed to by all Lenders, nine
or twelve months) thereafter, as selected by the Borrower in its Bridge Loan
Notice; provided that:


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


(ii)           any Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period; and


(iii)          no Interest Period shall extend beyond
the Maturity Date.


“Investment” means, as to any Person, any
direct or indirect acquisition or investment by such Person, whether by means
of (a) the purchase or other acquisition of capital stock or other securities
of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person and any arrangement pursuant to
which the investor Guarantees Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.


“IP Rights” has the meaning specified in Section
5.16.


“IRS” means the United States Internal
Revenue Service.


“Joint Venture” means any Person in which the
Borrower, directly or indirectly, has an ownership interest but does not
consolidate the assets or income of such Person in preparing its consolidated
financial statements.


“Laws” means, collectively, all
international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes, executive orders and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and



 14
 









 


permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.


“Lender” has the meaning specified in the
introductory paragraph hereto.


“Lending Office” means, as to any Lender, the
office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.


“Leverage Ratio” means, on the last day of
any fiscal quarter, the ratio of (a) Consolidated Total Indebtedness outstanding
on such date to (b) Consolidated Total Asset Value as of such date.


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect
as any of the foregoing).


“Loan” means an extension of credit by a
Lender to the Borrower under Article II.


“Loan Documents” means this Agreement, each
Note and the Fee Letter.


“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent) or condition
(financial or otherwise) of the Borrower or the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party; or (c)
a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a
party.


“Material Joint Venture” means a Joint
Venture in which the Borrower has made a net equity investment of $15,000,000
or greater.  For purposes of this
definition, the Borrower’s aggregate Investment in a Joint Venture will be
valued at (a) the aggregate amount of cash and cash equivalents and the
net book value of other property (less, without duplication, the aggregate
principal amount of Indebtedness secured by a Lien on such property at the time
of contribution unless, after giving effect to the contribution of such
property to the Joint Venture and any other transactions occurring in
connection therewith, such Indebtedness constitutes an obligation of the
Borrower or any of its Subsidiaries) contributed by the Borrower to such Joint
Venture minus (b) the aggregate amount of distributions received by
the Borrower from such Joint Venture that would be classified as a return of
capital (as opposed to a return on investment).


“Maturity Date” means the later of (a) July
31, 2008 (the “Initial Maturity Date”) and (b) if maturity is
extended pursuant to Section 2.15, such extended maturity date as
determined



 15
 









 


pursuant to such Section; provided, however,
that, in each case, if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.


“Moody’s” means Moody’s Investors Service,
Inc. and any successor thereto.


“Mortgage Lien” means any Lien that encumbers
a real property owned by a Person other than Permitted Liens.


“Multiemployer Plan” means any employee
benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate makes or is obligated to make contributions, or
during the preceding five plan years, has made or been obligated to make
contributions.


“Net Cash Proceeds” means, with respect to
any Public Equity Issuance, the excess of (i) the sum of the cash and cash
equivalents received in connection with such event over (ii) the
underwriting discounts and commissions, and other out-of-pocket
fees and expenses, incurred by the Borrower and its Subsidiaries in connection
with such sale.


“Net Income” means, for any period, for a
Person and its Subsidiaries on a consolidated basis, the net income of such
Person and its Subsidiaries (excluding extraordinary gains and extraordinary
losses and other non-recurring items, including, without limitation,
charges resulting from settlement of options to repurchase remarketable bonds
and other similar charges) for that period as determined in accordance with
GAAP.


“Note” means a promissory note made by the
Borrower in favor of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibit B.


“Obligations” means all advances to, and
debts, liabilities, obligations, covenants and duties of the Borrower arising
under any Loan Document or otherwise with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including (i) interest and fees that accrue after the commencement by or
against the Borrower or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding, (ii) obligations of the Borrower under any Swap Contract to which a
Lender or any Affiliate of a Lender is a party and (iii) obligations of the
Borrower under any Treasury Management Agreement with a Treasury Management
Lender.


“Organization Documents” means, (a) with
respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement
of formation or organization and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or organization
with the applicable Governmental Authority in the jurisdiction of its formation
or



 16
 









 


organization and, if applicable, any certificate or
articles of formation or organization of such entity.


“Other Taxes” means all present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or under any other Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.


“Outstanding Amount” means with respect to
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments occurring on such
date.


“Participant” has the meaning specified in Section
10.06(d).


“Patriot Act” has the meaning specified in Section
10.17.


“PBGC” means the Pension Benefit Guaranty
Corporation.


“Pension Plan” means any “employee pension
benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the Borrower or
any ERISA Affiliate contributes or has an obligation to contribute, or in the
case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


“Permitted Liens” means Liens permitted under
Section 7.01(c), (d), (e), (f) and (g).


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


“Plan” means any “employee benefit plan” (as
such term is defined in Section 3(3) of ERISA) established by the Borrower or,
with respect to any such plan that is subject to Section 412 of the Code or
Title IV of ERISA, any ERISA Affiliate.


“Platform” has the meaning specified in Section
6.02.


“Pro Rata Share” means (a) with respect to
the EBITDA, Net Income, Interest Expense, Total Asset Value and Unencumbered
Asset Value of each Joint Venture, the Borrower’s direct or indirect, percentage
ownership interest in such Joint Venture and (b) with respect to the
Indebtedness of each Joint Venture (i) if the Indebtedness is recourse to the
Borrower or any of its Subsidiaries the amount of such Indebtedness that is
recourse to the Borrower or such Subsidiary and (ii) if the Indebtedness is not
recourse to the Borrower or any of its Subsidiaries, the Borrower’s percentage
ownership interest in such Joint Venture.


“Public Equity Issuance” means the issuance,
sale or other disposition by the Borrower or one if its Subsidiaries of its
Equity Interests, including any Rule 144A offering or any rights,



 17
 









 


warrants or options to purchase shares of its Equity
Interests; provided that the term Public Equity Issuance shall not
include (a) the issuance or sale of Equity Interests by a Subsidiary of
the Borrower to the Borrower or another Subsidiary of the Borrower or
(b) any rights, options or Equity Interests issued pursuant to employee or
director incentive, stock option or stock repurchase plans in the ordinary
course.


“Public Lender” has the meaning specified in Section
6.02.


“Purchase Agreement” means that certain Share
Purchase Agreement, dated as of June 3, 2007, by and between SEGRO plc, a
public limited company incorporated under the laws of England and Wales, with
registered number 167591, as seller, and the Borrower, as buyer.


“Refinancing” means the repayment of existing
indebtedness of the Borrower and the Acquired Business of up to $1,120,000,000
in connection with the Acquisition.


“Register” has the meaning specified in Section
10.06(c).


“REIT” means a real estate investment trust
as defined in Sections 856-860 of the Code.


“Related Parties” means, with respect to any
Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such Person’s Affiliates.


“Reportable Event” means any of the events
set forth in Section 4043(c) of ERISA, other than events for which the 30 day
notice period has been waived.


“Request for Credit Extension” means with
respect to a Borrowing, conversion or continuation of Loans, a Bridge Loan
Notice.


“Required Lenders” means, as of any date of
determination, Lenders having more than 50% of (i) the Aggregate
Commitments or (ii) the Total Outstandings, as the case may be; provided
that the Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.


“Responsible Officer” means the chief
executive officer, president, chief financial officer, each executive vice
president and senior vice president, and the treasurer of the Borrower.  Any document delivered hereunder that is
signed by a Responsible Officer shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.


“Restricted Payment” means any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity



 18
 









 


Interest, or on account of any return of capital to
the Borrower’s stockholders, partners or members (or the equivalent Person
thereof).


“S&P” means Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc. and any successor
thereto.


“Scheduled Principal Payment” means (a) all
scheduled principal payments by the Borrower and its Subsidiaries with respect
to its Consolidated Total Indebtedness (other than payments due at final maturity
of any tranche of Indebtedness) and (b) without duplication, the Borrower’s Pro
Rata Share of all scheduled principal payments with respect to the Indebtedness
(other than payments due at final maturity of any tranche of Indebtedness) of
each Material Joint Venture, in each case without giving effect to any
reduction in such scheduled principal payments as a result of any voluntary or
mandatory prepayment with respect thereto made in the same period in which such
principal payment was scheduled to be made.


“SEC” means the Securities and Exchange
Commission, or any Governmental Authority succeeding to any of its principal
functions.


“Secured Debt” means that portion of
Consolidated Total Indebtedness that is subject to a Lien (other than Permitted
Liens).


“Secured Debt Ratio” means, on the last day
of any fiscal quarter, the ratio of (a) Secured Debt outstanding on such date
to (b) Consolidated Total Asset Value as of such date.


“SPC” has the meaning set forth in Section
10.06(h).


“Significant Acquisition” means the acquisition
(in one or a series of related transactions) of all or substantially all of the
assets or Equity Interests of a Person or any division, line of business or
business unit of a Person for an aggregate consideration in excess of
$750,000,000.


“Subsidiary” of a Person means a corporation,
partnership, joint venture, limited liability company or other business entity
the accounts of which are consolidated with the accounts of the Borrower in the
Borrower’s consolidated financial statements prepared in accordance with
GAAP.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.


“Swap Contract” means (a) any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing, whether
or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of



 19
 









 


master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.


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


“Syndication Agent” means UBS Securities LLC
in its capacity as Syndication Agent.


“Synthetic Lease Obligation” means the
monetary obligation of a Person under a so-called synthetic, off-balance sheet
or tax retention lease.


“Taxes” means all present or future taxes,
levies, imposts, duties, deductions, withholdings, assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.


“Threshold Amount” means $100,000,000.


“Total Asset Value” means an amount equal to
(a) all assets of a Person and its Subsidiaries as determined in accordance
with GAAP plus (b) all accumulated depreciation associated with such assets
minus (c) Intangible Assets.


“Total Outstandings” means the aggregate
Outstanding Amount of all Loans.


“Transactions” means, collectively,
(i) the Acquisition, (ii) the Refinancing, (iii) the entering
into of this Agreement and the funding of the Loans, (iv) the payment of
related fees, commissions and expenses, (v) the entry into and borrowing
of not more than $1,500,000,000 under the Bank Loan Agreement, and
(vi) all transactions related thereto.


“Treasury Management Agreement” means any
treasury, depository or cash management arrangements, services or products,
including, without limitation, overdraft services and automated clearinghouse
transfers of funds.


“Treasury
Management
Lender” means any Person that, at the time it enters into a Treasury
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity
as a party to such Treasury Management Agreement.


“Type” means, with respect to a Loan, its
character as a Base Rate Loan or a Eurodollar Rate Loan.



 20
 









 


“Unencumbered
Asset Value” means the sum of (a) the aggregate net book value, as
determined in accordance with GAAP, of all real property of a Person that is
not subject to a Mortgage Lien plus (b) all accumulated
depreciation with respect to such real properties plus (c) unrestricted
cash and cash equivalents of such Person plus (d) the
sum of (i) unencumbered mezzanine and mortgage loan receivables (at the value
reflected in the consolidated financial statements of the Borrower, in
accordance with GAAP, as of such date, including the effect of any impairment
charges), (ii) unencumbered marketable securities (at the value reflected in
the consolidated financial statements of the Borrower, in accordance with GAAP,
as of such date, including the effect of any impairment charges), provided that
the items described in this clause (ii) and in the preceding clause (i) shall
not be taken into account to the extent that the amounts of such items exceed,
in the aggregate, 20% of Unencumbered Asset Value.


“Unfunded Pension Liability” means the excess
of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Pension Plan’s assets, determined in accordance
with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


“United States” and “U.S.” mean the
United States of America.


“Unsecured Debt” means that portion of
Consolidated Total Indebtedness that is not Secured Debt.


“Unsecured Leverage Ratio” means, on the last
day of any fiscal quarter, the ratio of (a) Unsecured Debt outstanding on such
date to (b) Consolidated Unencumbered Asset Value as of such date.


1.02        Other
Interpretive Provisions.


With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:


(a)           The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof”
and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and
not to any particular provision thereof, (iv) all



 21
 









 


references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


(b)           In the computation of periods of time
from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including.”


(c)           Section headings herein and in the
other Loan Documents are included for convenience of reference only and shall
not affect the interpretation of this Agreement or any other Loan Document.


1.03        Accounting
Terms.


(a)           Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed
herein.


(b)           Changes
in GAAP.  If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.


1.04        Rounding.


Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



 22
 









 


1.05        Times
of Day.


Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).


ARTICLE II


THE COMMITMENTS AND CREDIT
EXTENSIONS


2.01        Loans.


Subject to the terms and conditions set forth
herein, each Lender severally agrees to make a loan (each such loan, a “Loan”)
to the Borrower on the Closing Date in an amount not to exceed the amount of
such Lender’s Commitment. The Commitments are not revolving in nature, and
amounts repaid in respect of the Loans may not be reborrowed.  The Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


2.02        Borrowings,
Conversions and Continuations of Loans.


(a)           Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 12:00 Noon (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate
Loans.  Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Bridge Loan Notice,
appropriately completed and signed by a Responsible Officer.  Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof.  Each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof.  All Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein, provided,
however, all Borrowings made on the Closing Date shall be made as Base
Rate Loans unless the Borrower delivers a funding indemnity letter in form and
substance reasonably acceptable to the Administrative Agent at least three (3)
Business Days prior to the Closing Date.


Each Bridge Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation of Eurodollar
Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Bridge Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the



 23
 









 


applicable Loans shall be made as, or converted to,
Base Rate Loans.  Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Bridge Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


(b)           Following
receipt of a Bridge Loan Notice, the Administrative Agent shall promptly notify
each Lender of the amount of its Applicable Percentage of the applicable Loans,
and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans described in the preceding
subsection.  Each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 2:00 p.m.
on the Business Day specified in the applicable Bridge Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.01, the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Administrative Agent by the Borrower.


(c)           Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.


(d)           The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate.  At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in Bank of America’s prime
rate used in determining the Base Rate promptly following the public
announcement of such change.


(e)           After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more
than ten Interest Periods in effect with respect to all Loans hereunder.


2.03        [Intentionally Omitted]


2.04        [Intentionally
Omitted]


2.05        [Intentionally Omitted]


2.06        Prepayments.


(a)           The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time, voluntarily prepay Loans in whole or in part without premium or
penalty; provided



 24
 









 


that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding.  Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each prepayment shall be made ratably among
the Lenders in accordance with the Applicable Percentages.


(b)           [Intentionally
Omitted].


(c)           [Intentionally
Omitted].


(d)           [Intentionally
Omitted].


(e)           [Intentionally
Omitted].


2.07        Termination
or Reduction of Commitments.


Unless previously terminated, the Commitments will
terminate on the earliest to occur of (A) the Closing Date, immediately after
the closing hereunder; (B) September 30, 2007, if the Closing Date has not
occurred on or before such date; and (C) the termination of the Purchase
Agreement.


2.08        Repayment.


(a)           The
Borrower shall repay to the Lenders on the Maturity Date, unless accelerated
sooner pursuant to Section 8.02, the entire outstanding principal
balance of all Loans together with accrued but unpaid interest, fees and all
other sums with respect thereto.


(b)           [Intentionally
Omitted].


(c)           [Intentionally
Omitted].


(d)           [Intentionally
Omitted].



 25
 









 


2.09        Interest.


(a)           Applicable
Interest.  Subject to the provisions
of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on
the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable
Rate and (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.


(b)           Default Interest.


(i)            If any amount of principal of any
Loan is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.


(ii)           If any amount (other than principal
of any Loan) payable by the Borrower under any Loan Document is not paid when
due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


(iii)          Upon the request of the Required
Lenders, while any Event of Default exists, the Borrower shall pay interest on
the principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


(iv)          Accrued and unpaid interest on past
due amounts (including interest on past due interest) shall be due and payable
upon demand.


(c)           Interest
Payment Date.  Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


2.10        Fees.


(a)           [Intentionally
Omitted].


(b)           Other Fees.


(i)            The Borrower shall pay to the
Arrangers and the Administrative Agent for their own respective accounts fees
in the amounts and at the times specified in the Fee



 26
 









 


Letter.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


(ii)           The Borrower shall pay to the Lenders
such fees as shall have been separately agreed upon in writing in the amounts
and at the times so specified.  Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.


2.11        Computation
of Interest and Fees.


All computations of interest for Base Rate Loans
when the Base Rate is determined by Bank of America’s “prime rate” shall be
made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed.  All other computations of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than
if computed on the basis of a 365-day year). 
Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid
on the same day on which it is made shall, subject to Section 2.13(a),
bear interest for one day.  Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


2.12        Evidence
of Debt.


(a)           The
Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business.  The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the accounts
and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence
of manifest error.  Upon the request of
any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a Note, which
shall evidence such Lender’s Loans in addition to such accounts or
records.  Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.


(b)           [Intentionally
Omitted].


2.13        Payments
Generally; Administrative Agent’s Clawback.


(a)           General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed,



 27
 









 


at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each Lender its Applicable Percentage (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. 
All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. 
If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.


(b)           (i)  Funding by Lenders; Presumption by
Administrative Agent.  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section
2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower
a corresponding amount.  In such event,
if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans.  If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


(ii)           Payments by the Borrower;
Presumptions by Administrative Agent. 
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender in immediately available funds with interest



 28
 









 


thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


A notice of the Administrative Agent to any Lender
or the Borrower with respect to any amount owing under this subsection (b)
shall be conclusive, absent manifest error.


(c)           Failure
to Satisfy Conditions Precedent.  If
any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article
II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.


(d)           Obligations
of Lenders Several.  The obligations
of the Lenders hereunder to make Loans and to make payments pursuant to Section
10.04(c) are several and not joint. 
The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 10.04(c) on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation
or to make its payment under Section 10.04(c).


(e)           Funding
Source.  Nothing herein shall be
deemed to obligate any Lender to obtain the funds for any Loan 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 in any particular place
or manner.


2.14        Sharing
of Payments by Lenders.


If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Loans made by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its pro  rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans of the other
Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:


(i)            if any such participations or
subparticipations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest; and



 29
 









 


(ii)           the provisions of this Section shall
not be construed to apply to (x) any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).


The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.


2.15        Extension of Maturity Date.


(a)           Requests
for Extension.  The Borrower may, by
notice to the Administrative Agent (who shall promptly notify the Lenders) not
earlier than 90 days and not later than 60 days prior to the Maturity Date then
in effect hereunder (the “Existing Maturity Date”), request that each
Lender extend such Lender’s Maturity Date for an additional 6 months from the
Existing Maturity Date; provided that the Borrower may request no more
than two such extensions during the term of this Agreement.


(b)           Conditions
to Effectiveness of Extensions.  As a
condition precedent to such extension, (i) the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower dated as of the Existing
Maturity Date signed by a Responsible Officer of the Borrower certifying that,
before and after giving effect to such extension, (y) the representations
and warranties contained in Article V and the other Loan Documents
are true and correct on and as of the Existing Maturity Date, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a) and (b),
respectively, of Section 6.01 and (z) no Default or Event of
Default exists, (ii) the Borrower shall pay to the Lenders on the (A)
Initial Maturity Date a fee (to be shared among the Lenders based upon their pro
rata share of the Total Outstandings) equal to the product of
(x) 0.125% multiplied by (y) the Total Outstandings and, if extended
a second time and (B) 6 months from the Initial Maturity Date a fee (to be
shared among the Lenders based upon their pro  rata share of the
Total Outstandings) equal to the product of (x) 0.15% multiplied by
(y) the then Total Outstandings and (iii) the Borrower shall repay the
outstanding Loans in an amount such that the Total Outstandings after such
repayments does not exceed $1,825,000,000. 
If there is a second extension to the Maturity Date pursuant to Section
2.15 then, on the Existing Maturity Date, the Borrower shall repay the
outstanding Loans in an amount such that the Total Outstandings after such
repayments does not exceed $1,375,000,000.



 30















 


(c)           Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.14 or 10.01 to the
contrary.


2.16        [Intentionally
Omitted].


ARTICLE III


TAXES, YIELD PROTECTION AND ILLEGALITY


3.01        Taxes.


(a)           Payments
Free of Taxes.  Any and all payments
by or on account of any obligation of the Borrower hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.


(b)           Payment
of Other Taxes by the Borrower. 
Without limiting the provisions of subsection (a) above, the Borrower
shall timely pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


(c)           Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. 
A certificate as to the amount of such payment delivered to the Borrower
by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.


(d)           Evidence
of Payments.  As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


(e)           Status
of Lenders.  Any Foreign Lender that
is entitled to an exemption from or reduction of withholding tax under the law
of the jurisdiction in which the Borrower is resident



 31
 









 


for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


Without limiting the generality of the foregoing, in
the event that the Borrower is resident for tax purposes in the United States,
any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


(i)            duly completed copies of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party,


(ii)           duly completed copies of Internal
Revenue Service Form W-8ECI,


(iii)          in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under section
881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B)
of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service
Form W-8BEN, or


(iv)          any other form prescribed by applicable
law as a basis for claiming exemption from or a reduction in United States
Federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.


(f)            Treatment
of Certain Refunds.  If the
Administrative Agent or any Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon
the request of the Administrative



 32
 









 


Agent or such Lender, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or such Lender
in the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. 
This subsection shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other
Person.


3.02        Illegality.


If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.


3.03        Inability
to Determine Rates.


If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion
to or continuation thereof that (a) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means
do not exist for determining the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender.  Thereafter,
the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. 
Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.



 33
 









 


3.04        Increased
Costs; Reserves on Eurodollar Rate Loans.


(a)           Increased Costs Generally.  If any Change in Law shall:


(i)            impose, modify or deem applicable
any reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e));


(ii)           subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Eurodollar Loan made by it
or change the basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01 and
the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender); or


(iii)          impose on any Lender or the London
interbank market any other condition, cost or expense affecting this Agreement
or Eurodollar Loans made by such Lender or participation therein;


and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Loan) or to reduce the
amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender, as the case may be, for such additional costs incurred
or reduction suffered.


(b)           Capital
Requirements.  If any Lender
determines that any Change in Law affecting such Lender or any Lending Office
of such Lender or such Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s capital or on the capital of such Lender’s holding company, if
any, as a consequence of this Agreement, the Commitment of such Lender or the
Loans made by such Lender to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.


(c)           Certificates
for Reimbursement.  A certificate of
a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and delivered to the Borrower, in detail sufficient
to enable the Borrower to verify the computation thereof, shall be conclusive
absent manifest error.  The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.


(d)           Delay
in Requests.  Failure or delay on the
part of any Lender to demand compensation pursuant to the foregoing provisions
of this Section shall not constitute a waiver of



 34
 









 


such Lender’s right to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than nine months prior
to the date that such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine month period
referred to above shall be extended to include the period of retroactive effect
thereof).


(e)           Reserves
on Eurodollar Rate Loans.  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender.  If
a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.


3.05        Compensation
for Losses.


Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
(other than loss of anticipated profits) incurred by it as a result of:


(a)           any continuation, conversion, payment
or prepayment of any Loan other than a Base Rate Loan on a day other than the
last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);


(b)           failure to prepay, borrow, continue
or convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Borrower; or


(c)           any assignment of a Eurodollar Rate
Loan on a day other than the last day of the Interest Period therefor as a
result of a request by the Borrower pursuant to Section 10.13.


The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


For purposes of calculating amounts payable by the
Borrower to the Lenders under this Section 3.05, each Lender shall be
deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.



 35
 









 


3.06        Mitigation
Obligations; Replacement of Lenders.


(a)           Designation
of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender
shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as the
case may be, in the future, or eliminate the need for the notice pursuant to Section
3.02, as applicable, and (ii) in each case, would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender.  The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.


(b)           Replacement
of Lenders.  If any Lender requests
compensation under Section 3.04, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, the Borrower may replace
such Lender in accordance with Section 10.13.


3.07        Survival.


All of the Borrower’s obligations under this Article
III shall survive termination of the Commitments and repayment of all other
Obligations hereunder.


ARTICLE IV


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


4.01        Conditions
of Initial Credit Extension.


The effectiveness of this Agreement and the
obligation of each Lender to make its Credit Extension hereunder on the Closing
Date are subject to satisfaction of the following conditions precedent:


(a)           The Administrative Agent’s receipt of
the following, each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent:


(i)            executed counterparts of this
Agreement, executed and delivered by the Administrative Agent, the Borrower and
each Lender listed on Schedule 2.01;



 36
 









 


(ii)           a Note executed by the Borrower in
favor of each Lender requesting a Note;


(iii)          such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible
Officers as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents;


(iv)          such documents and certifications as
the Administrative Agent may reasonably require to evidence that the Borrower
is duly organized or formed, and that the Borrower is validly existing, in good
standing and qualified to engage in business in its state of organization and
in each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect;


(v)           a favorable opinion of Gibson Dunn
& Crutcher LLP, counsel to the Borrower, addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit E;


(vi)          a certificate signed by a Responsible
Officer certifying (A) that no Default shall exist, or would result from
such proposed Credit Extension or from the application of the proceeds thereof;
(B) that there has been no Closing Date Material Adverse Effect; (C) the
current Debt Ratings; and (D) that the representations and warranties relating
to the Borrower set forth in Sections 5.01, 5.02, 5.03,
5.04, 5.13, 5.17, 5.18 and 5.19 are true and
correct on and as of the Closing Date.


(b)           Any fees required to be paid on or
before the Closing Date shall have been paid.


(c)           Unless waived by the Administrative
Agent, the Borrower shall have paid all fees, charges and disbursements of
counsel to the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees, charges and disbursements
as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).


(d)           The Acquisition and the other
Transactions shall be consummated in accordance with the Acquisition Agreement
and the other documentation related to the Acquisition and each of the other
Transactions, each as in effect on the date hereof (collectively, the “Acquisition
Documents”) without waiver or amendment thereof that is



 37
 









 


materially adverse to the
Lenders unless consented to by Bank of America, N.A. and UBS Loan Finance LLC.


(e)           The Borrower shall have provided the
documentation and other information to the Lenders that is required by
regulatory authorities under applicable “know your customer” and
anti-money-laundering rules and regulations, including, without limitation, the
Patriot Act.


(f)            The Administrative Agent shall have
received a Request for Credit Extension in accordance with the requirements
hereof.


Without limiting the generality of the provisions of
the last paragraph of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.01, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, (i) this Agreement and each
other document to which it is a party or which it has reviewed or (ii) any
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.


Each Request for Credit Extension (other than a
Bridge Loan Notice requesting only a conversion of Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in Sections
4.01(a)(vi)(A) and (f) have been satisfied on and as of the date of
the Credit Extension.


ARTICLE V


REPRESENTATIONS AND WARRANTIES


The Borrower represents and
warrants to the Administrative Agent and the Lenders that:


5.01        Existence,
Qualification and Power; Compliance with Laws.


The Borrower and each of its Subsidiaries (a) is
duly organized or formed, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents to which
it is a party, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license, and (d) is in compliance with all Laws; except in each case referred to
in clause (b)(i), (c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.



 38
 









 


5.02        Authorization;
No Contravention.


The execution, delivery and performance by the
Borrower of each Loan Document has been duly authorized by all necessary
corporate or other organizational action, and do not and will not
(a) contravene the terms of any of the Borrower’s Organization Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under
(i) any Contractual Obligation to which the Borrower is party or affecting
the Borrower or the properties of the Borrower or any of its Subsidiaries or
(ii) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which the Borrower or its property is subject; or
(c) violate any Law.  The Borrower
and each of its Subsidiaries are in compliance with all Contractual Obligations
referred to in clause (b)(i), except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.


5.03        Governmental
Authorization; Other Consents.


No approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental Authority or
any other Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, the Borrower of this
Agreement or any other Loan Document.


5.04        Binding
Effect.


This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by the Borrower.  This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.


5.05        Financial
Statements; No Material Adverse Effect.


(a)           The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


(b)           The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
March 31, 2007 (or, if the Closing Date occurs after August 15, 2007, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
June 30, 2007), and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date



 39
 









 


thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


(c)           Since
the date of the Audited Financial Statements, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.


(d)           The
financial information of the Borrower and its Subsidiaries delivered pursuant
to Section 6.01 (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


5.06        Litigation.


There are no actions, suits, proceedings, claims,
investigations or disputes pending or, to the knowledge of the Borrower after
due and diligent investigation, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, by or against the Borrower
or any of its Subsidiaries or against any of their properties or revenues that
(a) purport to affect or pertain to this Agreement or any other Loan Document,
or any of the transactions contemplated hereby, or (b) either individually or
in the aggregate, if determined adversely, could reasonably be expected to have
a Material Adverse Effect.


5.07        No
Default.


Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  No Default has occurred
and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.


5.08        Ownership
of Property; Liens; Leases.


(a)           Each
of the Borrower and each Subsidiary has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



 40
 









 


(b)           The
property of the Borrower and its Subsidiaries is subject to no Liens, other
than Liens permitted by Section 7.01.


(c)           Except
as could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, (i) there are no renewal or extension options
applicable to any lease to which the Borrower or any Subsidiary is a party;
(ii) to the Borrower’s knowledge, no condition exists which, with the giving of
notice or the passage of time, or both, would permit any lessee to cancel its
obligations under any lease to which the Borrower or any Subsidiary is a party;
(iii) the Borrower has received no notice that any lessee intends to cease
operations at any leased property prior to the expiration of the term of the
applicable lease (other than temporarily due to casualty, remodeling,
renovation or any similar causes) and (iv) to the Borrower’s knowledge, none of
the lessees or their sub-lessees, if any, under any of the leases to which the
Borrower or any Subsidiary is a party is the subject of any bankruptcy,
reorganization, insolvency or similar proceeding.


5.09        Environmental
Compliance.


The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and
properties, and as a result thereof the Borrower has reasonably concluded that
such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


5.10        Insurance.


The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or
the applicable Subsidiary operates.


5.11        Taxes.


The Borrower and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be filed,
and have paid all Federal, state and other material taxes, assessments, fees
and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.  Neither the Borrower nor any
Subsidiary thereof is party to any tax sharing agreement.



 41
 









 


5.12        ERISA
Compliance.


(a)           Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Borrower, nothing
has occurred which would prevent, or cause the loss of, such
qualification.  The Borrower and each
ERISA Affiliate have made all required contributions to each Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.


(b)           There
are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan
that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that
has resulted or could reasonably be expected to result in a Material Adverse
Effect.


(c)           (i)  No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
(iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA.


5.13        Margin Regulations; Investment
Company Act; REIT Status.


(a)           The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.


(b)           None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or
is required to be registered as an “investment company” under the Investment
Company Act of 1940.


(c)           The
Borrower meets all requirements to qualify as a REIT.


5.14        Disclosure.


The Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably
be



 42
 









 


expected to result in a Material Adverse Effect.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of the Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation
of this Agreement or delivered hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


5.15        Compliance
with Laws.


Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.


5.16        Intellectual
Property; Licenses, Etc.


The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person.  To
the best knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Borrower or any Subsidiary infringes
upon any rights held by any other Person. 
No claim or litigation regarding any of the foregoing is pending or, to
the best knowledge of the Borrower, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


5.17        Use
of Proceeds.


The proceeds of the Loans hereunder will be used
solely for the purposes specified in Section 6.11.  No proceeds of the Loans hereunder will be
used for the acquisition of another Person unless the board of directors (or
other comparable governing body) or stockholders (or other equity owners), as appropriate,
of such Person has approved such acquisition.


5.18        Taxpayer
Identification Number.


The Borrower’s true and correct U.S. taxpayer identification
number is set forth on Schedule 10.02.



 43
 









 


5.19        Acquisition
Documents.


The Lenders have been furnished true and complete
copies of each Acquisition Document to the extent executed and delivered on or
prior to the Closing Date.


ARTICLE VI


AFFIRMATIVE COVENANTS


So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, the Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:


6.01        Financial
Statements.


Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:


(a)           as soon as available, but in any
event within five days of the date the Borrower is required to file its
Form 10-K with the SEC (without giving effect to any extension of
such due date, whether obtained by filing the notification permitted by
Rule 12b-25 or any successor provision thereto or otherwise)
(commencing with the fiscal year ending December 31, 2007), a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, such consolidated
statements to be audited and accompanied by (i) a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and
applicable Securities Laws and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the
scope of such audit; and


(b)           as soon as available, but in any
event within five days of the date the Borrower is required to file its
Form 10-Q with the SEC (without giving effect to any extension of
such due date, whether obtained by filing the notification permitted by
Rule 12b-25 or any successor provision thereto or otherwise)
(commencing with the fiscal quarter ending June 30, 2007), a consolidated
balance sheet of the Borrower as at the end of such fiscal quarter, and the
related consolidated statements of income or operations for such fiscal quarter
and for the portion of the Borrower’s fiscal year then ended, and a statement
of cash flow for the portion of the Borrower’s fiscal year then ended setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such consolidated statements to
be certified by a



 44
 









 


Responsible Officer as
fairly presenting the financial condition, results of operations, shareholders’
equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence
of footnotes; and


 (c)          as
soon as available, but in no event later that 60 days following the end of each
fiscal year of the Borrower, an annual forecast for the then-current fiscal
year, prepared in a manner and in the form of the forecast provided on the
Closing Date or in such other form as is reasonably acceptable to the
Administrative Agent and the Required Lenders.


As to any information contained in materials
furnished pursuant to Section 6.02(d), the Borrower shall not be
separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in clauses (a) and (b) above
at the times specified therein.


6.02        Certificates;
Other Information.


Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:


(a)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b)
(commencing with the delivery of the financial statements for the fiscal
quarter ending September 30, 2007), a duly completed Compliance
Certificate signed by a Responsible Officer;


(b)           promptly after any request by the
Administrative Agent or any Lender, copies of any management letters submitted
to the board of directors (or the audit committee of the board of directors) of
the Borrower by independent accountants in connection with an audit of the accounts
of the Borrower;


(c)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate of its independent
certified public accountants certifying such financial statements and stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or, if any such Default shall exist, stating the nature and status
of such event;


(d)           promptly after the same are
available, copies of each annual report, proxy or financial statement or other
report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements
which the Borrower may file or be required to file with the SEC under Section
13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required
to be delivered to the Administrative Agent pursuant hereto;


 



 45















(e)           promptly, and in any event within
five Business Days after receipt thereof by the Borrower or any Subsidiary
thereof, copies of each notice or other correspondence received from the SEC
(or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation by such agency regarding financial or other operational results
of the Borrower or any Subsidiary thereof; and


(f)            promptly, such additional
information regarding the business, financial or corporate affairs of the
Borrower or any Subsidiary, or compliance with the terms of the Loan Documents,
as the Administrative Agent or any Lender may from time to time reasonably request.


Documents required to be delivered pursuant to Section
6.01(a) or (b) or Section 6.02(d) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative
Agent); provided that:  (i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the
Administrative Agent.  Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arrangers will make available to the Lenders
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have
personnel that do not wish to receive material non-public information
with respect to the Borrower or its Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ activities.  The Borrower hereby agrees that so long as
the Borrower is the issuer of any outstanding debt or equity securities that
are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are
to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof, (x) by marking Borrower Materials




 46
 









“PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers and the Lenders to treat
such Borrower Materials as not containing any material non-public
information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided,
however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 10.07) (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative Agent
and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.” Notwithstanding the foregoing, the
Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”


6.03        Notices.


Promptly notify the
Administrative Agent and each Lender of:


(a)           the occurrence of any Default;


(b)           any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect, including (i)
breach or non-performance of, or any default under, a Contractual Obligation of
the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;


(c)           the occurrence of any ERISA Event;


(d)           any material change in accounting
policies or financial reporting practices by the Borrower or any Subsidiary;
and


(e)           any announcement by Moody’s or
S&P of any change or possible change in a Debt Rating.


Each notice pursuant to this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.


6.04        Payment of Obligations.


Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being 



 47
 









maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness, in each case except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


6.05        Preservation of Existence, Etc.


(a)           Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a
transaction not prohibited by Section 7.04 or 7.05, or to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; (b)  take all
reasonable action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c)  preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.  Without limiting
the generality of the foregoing, the Borrower will do all things necessary to
maintain its status as a REIT.


6.06        Maintenance of Properties.


(a)           Maintain,
preserve and protect, or make contractual or other provisions to cause to maintain,
preserve or protect, all of its properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear
and tear excepted, in each case except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; (b)  make, or make contractual or other provisions
to cause to be made, all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c)  use the standard of care typical in the
industry in the operation and maintenance of its facilities.


6.07        Maintenance of Insurance.


(a)           Maintain
with financially sound and reputable insurance companies not Affiliates of the
Borrower, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.


(b)           Use
its, and cause the Subsidiaries to use their, commercially reasonable best
efforts to ensure that each lessee of a property owned in whole or in part,
directly or indirectly, by the Borrower or any Subsidiary, and each mortgagee
of a property on which the Borrower or any Subsidiary holds a mortgage, has,
and until the Maturity Date will keep, in place adequate insurance that names
the Borrower or such Subsidiary as a loss payee.  For purposes of the preceding sentence “adequate
insurance” shall mean insurance, with financially sound and reputable
insurers in such amounts and insuring against such risks as are customarily
maintained by similar businesses.



 48
 









6.08        Compliance with Laws.


Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted;
or (b) the failure to comply therewith could not reasonably be expected to have
a Material Adverse Effect.


6.09        Books and Records.


Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the assets
and business of the Borrower or such Subsidiary, as the case may be.


6.10        Inspection Rights.


Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Borrower; provided, however, that when an Event of
Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.


6.11        Use of Proceeds.


Use proceeds from the Loans to finance, in part, the
Acquisition, to pay transaction fees, commissions and expenses in connection
therewith and to repay the amounts owed under the Existing Credit Agreement.


6.12        REIT Status.


The Borrower will, and will cause each of its
Subsidiaries to, operate its business at all times so as to satisfy all
requirements necessary to qualify and maintain the Borrower’s  qualification as a real estate investment
trust under Sections 856 through 860 of the Code.  The Borrower will maintain adequate records
so as to comply with all record-keeping requirements relating to its
qualification as a real estate investment trust as required by the Code and
applicable regulations of the Department of the Treasury promulgated thereunder
and will properly prepare and timely file with the Internal Revenue Service all
returns and reports required thereby.



 49
 









6.13        Employee Benefits.


Comply in all material respects with the applicable
provisions of ERISA and the Code with respect to each Plan, and
(b) furnish to the Administrative Agent (x)  within five days after
any Responsible Officer or any ERISA Affiliate knows or has reason to know
that, any ERISA Event has occurred that, alone or together with any other ERISA
Event could reasonably be expected to result in liability of the Borrower or
any of its ERISA Affiliates in an aggregate amount exceeding the Threshold
Amount or the imposition of a Lien, a statement setting forth details as to
such ERISA Event and the action, if any, that the Borrower or ERISA Affiliate
proposes to take with respect thereto, and (y) upon request by the
Administrative Agent, copies of (i) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the Borrower or
any ERISA Affiliate with the Internal Revenue Service with respect to each
Pension Plan; (ii) the most recent actuarial valuation report for each
Pension Plan; (iii) all notices received by the Borrower or any ERISA
Affiliate from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental
reports or filings relating to any Plan as the Administrative Agent shall
reasonably request.


ARTICLE VII


NEGATIVE COVENANTS


So long as any Lender shall have any Commitment
hereunder or any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, the Borrower shall not, nor shall it permit any Subsidiary to, directly
or indirectly:


7.01        Liens.


Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, other than the following:


(a)           Liens pursuant to any Loan Document;


(b)           Liens securing Indebtedness permitted
under Section 7.03;


(c)           Liens for taxes not yet due or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


(d)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto, to the extent required by
GAAP, are maintained on the books of the applicable Person;



 50
 









(e)           pledges or deposits in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other social security legislation, other than any Lien imposed by
ERISA;


(f)            deposits to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;


(g)           easements, rights-of-way,
restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;
and


(h)           Liens securing judgments for the
payment of money not constituting an Event of Default under Section 8.01(h)
or securing appeal or other surety bonds related to such judgments.


7.02        Investments.


(a)           make
or allow Investments in Development Property to exceed, in the aggregate at any
one time outstanding, 35% of Consolidated Total Asset Value.


(b)           make
or allow Investments in Joint Ventures to exceed, in the aggregate at any one
time outstanding, 25% of Consolidated Total Asset Value.  For purposes of this Section 7.02(b),
the Borrower’s aggregate Investment in Joint Ventures will be valued at
(i) the aggregate amount of cash and cash equivalents and the net book
value of other property (less, without duplication, the aggregate principal
amount of Indebtedness secured by a Lien on such property at the time of
contribution unless, after giving effect to the contribution of such property
to the Joint Ventures and any other transactions occurring in connection
therewith, such Indebtedness constitutes an obligation of the Borrower or any
of its Subsidiaries) contributed by the Borrower to the Joint Ventures minus
(ii) the aggregate amount of distributions received by the Borrower from
the Joint Ventures that would be classified as a return of capital (as opposed
to a return on investment).


7.03        Indebtedness.


Create,
incur, assume or suffer to exist any Indebtedness of the Borrower or any of its
Subsidiaries, except:


(a)           Indebtedness under
the Loan Documents; and


(b)           other Indebtedness; provided
that (i) after giving effect thereto (including any Liens associated therewith)
the Borrower and its Subsidiaries are in compliance with all of the terms of
this Agreement, including, but not limited to, the financial covenants 



 51
 









set forth in Section 7.10
and (ii) with respect to obligations of the Borrower in respect of Swap
Contracts, such Swap Contracts shall be entered into in order to manage
existing or anticipated risk and not for speculative purposes.


7.04        Fundamental Changes.


Merge, dissolve, liquidate, consolidate with or into
another Person, except that, so long as no Default exists or would result
therefrom, any Subsidiary may merge with (a) the Borrower, provided
that the Borrower shall be the continuing or surviving Person, or (b) any
one or more other Subsidiaries, provided that when any wholly-owned
Subsidiary is merging with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person.


7.05        Dispositions.


Make any Disposition of all or substantially all of
the assets of the Borrower and its Subsidiaries, taken as a whole.


7.06        Restricted Payments.


Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing or
would result therefrom, the Borrower and each Subsidiary may purchase, redeem
or otherwise acquire Equity Interests issued by it in an amount not to exceed,
in the aggregate, fifteen percent (15%) of Consolidated Tangible Net Worth
during the term of this Agreement.


7.07        Change in Nature of Business.


Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related
or incidental thereto.


7.08        Transactions with Affiliates.


Enter into any transaction of any kind with any
Affiliate of the Borrower (other than a Subsidiary), whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially
as favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm’s-length
transaction with a Person other than an Affiliate.


7.09        Burdensome Agreements.


Enter into any Contractual Obligation (other than
this Agreement or any other Loan Document) that limits the ability of (a) any
wholly-owned Subsidiary of the Borrower (other than a Subsidiary that is a
bankruptcy remote special purpose entity) to Guarantee the Indebtedness of the
Borrower or (b) the Borrower to create, incur, assume or suffer to exist Liens
on its property; provided, however, that this clause (b) shall
not prohibit any negative pledge incurred or 



 52
 









provided in favor of any holder of Indebtedness
permitted under Section 7.03 solely to the extent
any such negative pledge (i) relates to the property financed by or the subject
of such Indebtedness or (ii) only requires the grant of a Lien to secure such Indebtedness
if a Lien is granted by the Borrower to secure other Indebtedness of the Borrower.


7.10        Financial Covenants.


(a)           Leverage Ratio. 
Permit the Leverage Ratio to be greater than the following amounts as of
the end of any fiscal quarter ending during the corresponding period set forth
below:




	
  Beginning on the Closing
  Date and on or prior to September 30, 2007

  	
   

  	
  0.75

  
	
   

  	
   

  	
   

  
	
  Beginning on
  October 1, 2007 and on or prior to June 30, 2008

  	
   

  	
  0.70

  
	
   

  	
   

  	
   

  
	
  Beginning on
  July 1, 2008 and on or prior to December 31, 2008

  	
   

  	
  0.65

  
	
   

  	
   

  	
   

  
	
  Beginning on
  January 1, 2009

  	
   

  	
  0.60

  






 


Notwithstanding the foregoing, beginning on January
1, 2009 the Borrower shall be permitted to increase the maximum Leverage Ratio
to 65% for a maximum of two (2) consecutive fiscal quarterly periods following
a Significant Acquisition.


(b)           Secured
Debt Ratio.  Permit the Secured Debt
Ratio to be greater than .30 to 1.0 as of the end of any fiscal quarter.


(c)           Fixed Charge Coverage Ratio.  Permit the Fixed Charge Coverage Ratio to be
less than the following amounts as of the end of any fiscal quarter ending
during the corresponding period set forth below:




	
  Beginning on the Closing
  Date and on or prior to September 30, 2008

  	
   

  	
  1.50

  
	
   

  	
   

  	
   

  
	
  Beginning on
  October 1, 2008

  	
   

  	
  1.75

  






 



 53
 









(d)           Unsecured
Leverage Ratio.  Permit the Unsecured
Leverage Ratio to be greater than the following amounts as of the end of any
fiscal quarter ending during the corresponding period set forth below:




	
  Beginning on the Closing
  Date and on or prior to December 31, 2007

  	
   

  	
  0.90

  
	
   

  	
   

  	
   

  
	
  Beginning on
  January 1, 2008 and on or prior to June 30, 2008

  	
   

  	
  0.80

  
	
   

  	
   

  	
   

  
	
  Beginning on
  July 1, 2008 and on or prior to December 31, 2008

  	
   

  	
  0.75

  
	
   

  	
   

  	
   

  
	
  Beginning on
  January 1, 2009

  	
   

  	
  0.65

  






 


(e)           Consolidated
Tangible Net Worth.  Permit the
Consolidated Tangible Net Worth to be, as of the end of any fiscal quarter,
less than (i) 85% of the Consolidated Tangible Net Worth at the Closing
Date (on a pro forma basis to reflect the Acquisition) plus (ii) 85% of
Net Cash Proceeds from all Public Equity Issuances subsequent to the Closing
Date.


ARTICLE VIII


EVENTS OF DEFAULT AND REMEDIES


8.01        Events of Default.


Any of the following shall
constitute an Event of Default:


(a)           Non-Payment.  The Borrower fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within
three days after the same becomes due, any interest on any Loan or any fee due
hereunder, or (iii) within five days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or


(b)           Specific Covenants.  The Borrower or any of its Subsidiaries fails
to perform or observe any term, covenant or agreement contained in any of Section
6.01, 6.02, 6.03, 6.05, 6.10, 6.11 or Article
VII; or


(c)           Other Defaults.  The Borrower or any of its Subsidiaries fails
to perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on
its part to be performed or observed and such failure continues for 30 days; or


(d)           Representations and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower 



 54
 









herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall
be incorrect in any material respect when made or deemed made; or


(e)           Cross-Default.  (i) The Borrower or any of its Subsidiaries
(A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default
or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or


(f)            Insolvency Proceedings, Etc.  The Borrower or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, 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 such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60
calendar days, or an order for relief is entered in any such proceeding; or


(g)           Inability to Pay Debts; Attachment.  (i) The Borrower or any of its Subsidiaries
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) 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 



 55
 









such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or


(h)           Judgments.  There is entered against the Borrower or any
of its Subsidiaries (i) a final judgment or order for the payment of money
in an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 10 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or


(i)            ERISA.  (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess
of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount; or


(j)            Invalidity of Loan Documents.  Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or the Borrower or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or the Borrower denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or


(k)           Change of Control.  There occurs any Change of Control.


8.02        Remedies Upon Event of Default.


If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the
following actions:


(a)           declare the commitment of each Lender
to make Loans to be terminated, whereupon such commitments and obligation shall
be terminated;


(b)           declare the unpaid principal amount
of all outstanding Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
and



 56
 









(c)           exercise on behalf of itself and the
Lenders all rights and remedies available to it and the Lenders under the Loan
Documents;


provided, however,
that upon the occurrence of an Event of Default pursuant to Sections 8.01(f)
or (g) or the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of the Administrative Agent or any Lender.


8.03        Application of Funds.


After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and
payable as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:


First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the Administrative
Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;


Second, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts (other
than principal and interest) payable to the Lenders (including fees, charges
and disbursements of counsel to the respective Lenders and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;


Third, to payment of that portion of the
Obligations constituting accrued and unpaid interest on the Loans and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between
the Borrower and any Lender, or any Affiliate of a Lender, ratably among
the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) in
proportion to the respective amounts described in this clause Third
payable to them;


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans, payment of breakage, termination or other payments, and any
interest accrued thereon, due under any Swap Contract between the Borrower and
any Lender, or any Affiliate of a Lender and amounts owing under Treasury Management
Agreements, ratably among the
Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders), the Treasury Management Lenders in
proportion to the respective amounts described in this clause Fourth
held by them; and


Last, the balance, if any, after all of the
Obligations have been indefeasibly paid in full, to the Borrower or as
otherwise required by Law.



 57
 









ARTICLE IX


ADMINISTRATIVE AGENT


9.01        Appointment and Authority.


Each of the Lenders hereby irrevocably appoints Bank
of America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.  The provisions of this Article are solely for
the benefit of the Administrative Agent and the Lenders, and the Borrower shall
not have rights as a third party beneficiary of any of such provisions.


9.02        Rights as a Lender.


The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the Administrative
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


9.03        Exculpatory Provisions.


The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


(a)           shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing;


(b)           shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; and



 58
 









(c)           shall not, except as expressly set
forth herein and in the other Loan Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by
the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.


The Administrative Agent shall not be liable for any
action taken or not taken by it (i) with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower or a Lender.


The Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


9.04        Reliance by Administrative Agent.


The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including
any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. 
The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of
such Loan.  The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


9.05        Delegation of Duties.


The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents 



 59
 









appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties.  The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


9.06        Resignation of Administrative Agent.


The Administrative Agent may at any time give notice
of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the
United States.  If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this
Section.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.


9.07        Non-Reliance on Administrative Agent
and Other Lenders.


Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based 



 60
 









upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.


9.08        No Other Duties, Etc.


Anything herein to the contrary notwithstanding,
none of the Arrangers, Bookrunners, Syndication Agent or Documentation Agents
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent or a Lender
hereunder.


9.09        Administrative Agent May File Proofs
of Claim.


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the Administrative
Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


(a)           to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the
Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders
and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders  and the
Administrative Agent under Sections 2.10 and 10.04) allowed in
such judicial proceeding; and


(b)           to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute the
same;


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.10 and 10.04.


Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.



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ARTICLE X


MISCELLANEOUS


10.01      Amendments, Etc.


No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:


(a)           extend or increase the Commitment of
any Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;


(b)           postpone any date fixed by this
Agreement or any other Loan Document for any payment or mandatory prepayment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;


(c)           reduce the principal of, or the rate
of interest specified herein on, any Loan, or (subject to clause (iv) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder (including pursuant to Section 2.06) or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary to
amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest at the Default Rate;


(d)           change Section 2.14 or Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender; or


(e)           change any provision of this Section
or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;


and provided, further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document and (ii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or 



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consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.


Notwithstanding the fact that the consent of all the
Lenders is required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any reorganization plan
that affects the Loans and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions
set forth herein and (y) the Required Lenders may consent to allow the Borrower
to use cash collateral in the context of a bankruptcy or insolvency proceeding.


10.02      Notices; Effectiveness; Electronic
Communication.


(a)           Notices
Generally.  Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


(i)            if to the Borrower or the
Administrative Agent, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 10.02;
and


(ii)           if to any other Lender, to the
address, telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service,
or mailed by certified or registered mail, shall be deemed to have been given
when received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the
next business day for the recipient). 
Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).


(b)           Electronic
Communications.  Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. 
The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


Unless the Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” 



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function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.


(c)           Change
of Address, Etc.  Each of the
Borrower and the Administrative Agent may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
the other parties hereto.  Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower and the Administrative
Agent.  In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. 
Furthermore, each Public Lender agrees to cause at least one individual
at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to
Borrower Materials that are not made available through the “Public Side
Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.


(d)           Reliance
by Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Bridge Loan Notices) purportedly
given by or on behalf of the Borrower 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.  The Borrower shall indemnify the
Administrative Agent, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


10.03      No Waiver; Cumulative Remedies.


No failure by any Lender or the Administrative Agent
to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.



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10.04      Expenses; Indemnity; Damage Waiver.


(a)           Costs
and Expenses.  The Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by the Agents and their
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, due diligence, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated) and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender (including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.


(b)           Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender,
the Agents and their Affiliates and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
penalties, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower arising
out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby (including, without limitation,
each Lender’s agreement to make Loans or the use or intended use of the
proceeds thereof), (ii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, penalties,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Borrower against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.


(c)           Reimbursement
by Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the Administrative
Agent (or any sub-agent thereof) or any Related Party of any of the 



 65
 









foregoing and without relieving the Borrower of its
obligations with respect thereto, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent) or such Related Party, as the case
may be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent), or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).


(d)           Waiver
of Consequential Damages, Etc.  To
the fullest extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or the use of the proceeds thereof.  No
Indemnitee referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby.


(e)           Payments.  All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.


(f)            Survival.  The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.


10.05      Payments Set Aside.


To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under clause
(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



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10.06      Successors and Assigns.


(a)           Successors
and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way
of participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment or grant of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an
SPC in accordance with the provisions of subsection (h) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


(b)           Assignments
by Lenders.  Any Lender may at any
time assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:


(i)            Minimum Amounts.


(A)          in the case of an assignment of the
entire remaining amount of the assigning Lender’s Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund, no minimum amount need be assigned; and


(B)           in any case not described in
subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $2,500,000 unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.



 67
 









(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned;


(iii)          Required
Consents.  No consent shall be
required for any assignment except to the extent required by subsection
(b)(i)(B) of this Section and, in addition:


(A)          the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless
(1) an Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or
an Approved Fund; and


(B)           the consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) shall be
required if such assignment is to a Person that is not a Lender, an Affiliate
of such Lender or an Approved Fund with respect to such Lender.


(iv)          Assignment and Assumption.  The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee in the amount of $3,500; provided,
however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment.  The assignee, if it is not a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


(v)           No Assignment to the Borrower.  No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


(vi)          No Assignment to Natural Persons.  No such assignment shall be made to a natural
person.


Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.



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(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Borrower and any Lender (with respect to its
own interest only), at any reasonable time and from time to time upon reasonable
prior notice.


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.


Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any  provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05  to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 10.08  as though it
were a Lender, provided such Participant agrees to be subject to Section
2.14 as though it were a Lender.


(e)           Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04  than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) as though it were a Lender.


(f)            Certain
Pledges.  Any Lender may at any time
pledge, assign or grant a security interest in, all or any portion of its
rights under this Agreement (including under its Note, if any) 



 69
 









to secure obligations of such Lender, including any
pledge or assignment or grant of a security interest to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment or
grant of a security interest shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee or grantee for
such Lender as a party hereto.


(g)           Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


(h)           Special
Purpose Funding Vehicles. 
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof or, if it fails to do so, to make such payment to
the Administrative Agent as is required under Section 2.13(b)(ii).  Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations
of the Borrower under this Agreement (including its obligations under Section
3.04), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. 
The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof.  Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the
payment of a processing fee in the amount of $3,500 (which processing fee may
be waived by the Administrative Agent in its sole discretion), assign all or
any portion of its right to receive payment with respect to any Loan to the
Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.



 70
 









10.07      Treatment of Certain Information;
Confidentiality.


Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any governmental agency or regulatory authority purporting
to have jurisdiction over it or its Affiliates (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower, (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower
that the Administrative Agent, any such Lender reasonably believes is not bound
by a duty of confidentiality to the Borrower (i) to any rating agency
(provided such rating agencies are advised of the confidential nature of such
information and agree to keep such information confidential) or (j) as reasonably required by any Lender or other Person providing financing to
such Lender (provided such Lenders or other Persons are advised of the
confidential nature of such information and agree to keep such information
confidential).


For purposes of this Section, “Information”
means all information received from the Borrower or any Subsidiary relating to
the Borrower or any Subsidiary or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the
Borrower or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own or its other similarly situated customers’ confidential
information.


10.08      Right of Setoff.


If an Event of Default shall have occurred and be
continuing, each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender or any such Affiliate to or 



 71
 









for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under
this Agreement or any other Loan Document to such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender
and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender or
their respective Affiliates may have. 
Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


10.09      Interest Rate Limitation.


Notwithstanding anything to the contrary contained
in any Loan Document, the interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum Rate”). 
If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to
the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrower.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.


10.10      Counterparts; Integration;
Effectiveness.


This Agreement may be executed in counterparts (and
by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract.  This Agreement and the
other Loan Documents constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.


10.11      Survival of Representations and
Warranties.


All representations and warranties made hereunder
and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof.  Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any 



 72
 









investigation made by the Administrative Agent or any
Lender or on their behalf and notwithstanding that the Administrative Agent or
any Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.


10.12      Severability.


If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions.  The invalidity
of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.


10.13      Replacement of Lenders.


If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender is a Defaulting Lender, or if any Lender does not
consent to any amendment or waiver of any provision hereof or of any other Loan
Document for which its consent is required under Section 10.01 after Required
Lenders have consented thereto, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided
that:


(a)           the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 10.06(b);


(b)           such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);


(c)           in the case of any such assignment
resulting from a claim for compensation under Section 3.04 or payments required
to be made pursuant to Section 3.01, such assignment will result in a reduction
in such compensation or payments thereafter; and


(d)           such assignment does not conflict
with applicable Laws.



 73
 









A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.


10.14      Governing Law; Jurisdiction; Etc.


(a)           GOVERNING
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


(b)           SUBMISSION
TO JURISDICTION.  THE BORROWER
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.  NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


(c)           WAIVER
OF VENUE.  THE BORROWER IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02.  NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY 



 74
 









PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.


10.15      Waiver of Jury Trial.


EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


10.16      No Advisory or Fiduciary Responsibility.


In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), the Borrower
acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent, the Arranger, the Lenders and the other Lead Arrangers
are arm’s-length commercial transactions between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent, the Lenders and the
Lead Arrangers, on the other hand, (B) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent, each Lender and each Lead Arranger each is and has been
acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower or any of its Affiliates, or any other
Person and (B) neither the Administrative Agent, any Lender nor any Lead
Arranger has any obligation to the Borrower or any of its Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, the Lenders and the Lead Arrangers and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent, any Lender nor any Lead Arranger has any obligation to
disclose any of such interests to the Borrower or its  Affiliates.  To the fullest extent permitted by law, the
Borrower hereby waives and releases any claims that it may have against the
Administrative Agent, the Lenders and the Lead Arrangers with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.



 75
 









10.17      USA Patriot Act Notice.


Each Lender that is subject to the Patriot Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “Patriot Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Patriot Act.


10.18      Delivery of Signature Page.


Each Lender to become a party to this Agreement on
the date hereof shall do so by delivering to the Administrative Agent a
counterpart of this Agreement duly executed by such Lender.



 76
 









Each of the parties hereto have caused a counterpart
of this Agreement to be duly executed as of the date first above written.


	
  

  	
   

  	
  HEALTH CARE PROPERTY INVESTORS, INC.

  
	
  

  	
   

  	
  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mark Wallace

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark Wallace

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  EVP, CFO & Treasurer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Amie L. Edwards

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Amie L. Edwards

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Amie L. Edwards

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Amie L. Edwards

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  



 



 77















 


	
  

  	
   

  	
  UBS LOAN FINANCE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Mary
  E. Evans

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mary E. Evans

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ David B. Julie

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David B. Julie

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  	
   

  	
   

  
							



 


 


 


	
  

  	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Gary B. Wenslow

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary B. Wenslow

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  	
   

  	
   

  
							



 


 


 


	
  

  	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Vanessa Chiu

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Vanessa Chiu

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  
							



 


 


 


	
  

  	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Jeanette A. Griffin

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeanette A. Griffin

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  	
   

  
							



 



 78
 









 


	
  

  	
   

  	
  CITICORP NORTH AMERICA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ricardo James

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Ricardo James

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  CREDIT SUISSE, Cayman Islands Branch

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ CASSANDRA DROOGAN

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  CASSANDRA DROOGAN

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ LAURENCE LAPEYRE

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  LAURENCE LAPEYRE

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  ASSOCIATE

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bruce Mendelsohn

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bruce Mendelsohn

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David W. Shaw

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David W. Shaw

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W. B. Hamilton

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  W. B. Hamilton

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  	
   

  
							



 



 79
 









 


	
  

  	
   

  	
  CALYON NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas Randolph

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thomas Randolph

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Priya Vrat

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Priya Vrat

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  	
   

  
								



 


 


	
  

  	
   

  	
  KEYBANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
  A national banking association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bellini Lacey

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bellini Lacey

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Closing Officer

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Louis Alder

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Neil Crawford

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Neil Crawford

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  	
   

  
							



 


 


	
  

  	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Helen C. Hartz

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Helen C. Hartz

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  
							



 



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