Exhibit 10.5


 


SECOND
AMENDED AND RESTATED


 


REVOLVING
CREDIT AGREEMENT


 


 


AMONG


 


 


AMERIVEST
PROPERTIES INC.


 


 


AND


 


 


KEYBANK
NATIONAL ASSOCIATION,


 


AS
ADMINISTRATIVE AGENT


 


 


KEYBANC
CAPITAL MARKETS,


 


AS
SOLE LEAD ARRANGER AND BOOK MANAGER


 


AND


 


 


THE
LENDERS PARTY HERETO


 

















 


	
   

  	
   

  	
  Page

  
	
  §1.

  	
  DEFINITIONS AND RULES OF
  INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  §1.1

  	
  Definitions

  	
  1

  
	
   

  	
  §1.2

  	
  Rules of Interpretation

  	
   

  
	
   

  	
   

  	
  15

  
	
  §2.

  	
  LOAN FACILITY

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  §2.1

  	
  Commitment to Lend

  	
  16

  
	
   

  	
  §2.2

  	
  The Notes

  	
  16

  
	
   

  	
  §2.3

  	
  Interest on Loans

  	
  17

  
	
   

  	
  §2.4

  	
  Conversion Options

  	
  17

  
	
   

  	
  §2.5

  	
  Requests for Loans

  	
  18

  
	
   

  	
  §2.6

  	
  Funds for Loans

  	
  19

  
	
   

  	
   

  	
   

  
	
  §3.

  	
  REPAYMENT OF THE LOANS

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  §3.1

  	
  Maturity

  	
  19

  
	
   

  	
  §3.2

  	
  Mandatory Repayments of Loan

  	
  20

  
	
   

  	
  §3.3

  	
  Optional Repayments of Loans

  	
  20

  
	
   

  	
  §3.4

  	
  Effect of Prepayments

  	
  21

  
	
   

  	
   

  	
   

  
	
  §4.

  	
  CERTAIN GENERAL PROVISIONS

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
  §4.1

  	
  Facility Fees

  	
  21

  
	
   

  	
  §4.2

  	
  Unused Fee

  	
  21

  
	
   

  	
  §4.3

  	
  [Intentionally Omitted.]

  	
  21

  
	
   

  	
  §4.4

  	
  Funds for Payments

  	
  21

  
	
   

  	
  §4.5

  	
  Computations

  	
  22

  
	
   

  	
  §4.6

  	
  Additional Costs, Etc

  	
  22

  
	
   

  	
  §4.7

  	
  Capital Adequacy

  	
  23

  
	
   

  	
  §4.8

  	
  Certificate

  	
  23

  
	
   

  	
  §4.9

  	
  Breakage Costs

  	
  23

  
	
   

  	
  §4.10

  	
  Default Interest and Late Charges

  	
  23

  
	
   

  	
  §4.11

  	
  Inability to Determine LIBOR Rate

  	
  24

  
	
   

  	
  §4.12

  	
  Illegality

  	
  24

  
	
   

  	
  §4.13

  	
  Replacement of Lenders

  	
  24

  
	
   

  	
  §4.14

  	
  Limitation on Interest

  	
  25

  
	
   

  	
   

  	
   

  
	
  §5.

  	
  COLLATERAL SECURITY; NO
  LIMITATION ON RECOURSE

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  §5.1

  	
  Collateral Security

  	
  25

  
	
   

  	
  §5.2

  	
  No Limitation on Recourse

  	
  25

  
	
   

  	
  §5.3

  	
  Release of Mortgaged Property

  	
  25

  
	
   

  	
  §5.4

  	
  Reserve Account

  	
  25

  
	
   

  	
   

  	
   

  
	
  §6.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §6.1

  	
  Authority; Etc

  	
  26

  
								



 


i

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
  §6.2

  	
  Governmental Approvals

  	
  27

  
	
   

  	
  §6.3

  	
  Title to Properties; Leases

  	
  27

  
	
   

  	
  §6.4

  	
  Financial Statements

  	
  27

  
	
   

  	
  §6.5

  	
  No Material Changes

  	
  28

  
	
   

  	
  §6.6

  	
  Franchises, Patents, Copyrights, Etc

  	
  28

  
	
   

  	
  §6.7

  	
  Litigation

  	
  28

  
	
   

  	
  §6.8

  	
  No Materially Adverse Contracts, Etc

  	
  28

  
	
   

  	
  §6.9

  	
  Compliance With Other Instruments, Laws, Etc

  	
  28

  
	
   

  	
  §6.10

  	
  Tax Status

  	
  29

  
	
   

  	
  §6.11

  	
  Event of Default

  	
  29

  
	
   

  	
  §6.12

  	
  Investment Company Act

  	
  29

  
	
   

  	
  §6.13

  	
  Absence of Financing Statements, Etc

  	
  29

  
	
   

  	
  §6.14

  	
  Setoff, Etc

  	
  29

  
	
   

  	
  §6.15

  	
  Certain Transactions

  	
  29

  
	
   

  	
  §6.16

  	
  Benefit Plans; Multiemployer Plans; Guaranteed
  Pension Plans

  	
  29

  
	
   

  	
  §6.17

  	
  Regulations U and X

  	
  30

  
	
   

  	
  §6.18

  	
  Environmental Compliance

  	
  30

  
	
   

  	
  §6.19

  	
  Subsidiaries and Affiliates

  	
  31

  
	
   

  	
  §6.20

  	
  Leases

  	
  31

  
	
   

  	
  §6.21

  	
  Loan Documents

  	
  31

  
	
   

  	
  §6.22

  	
  Property

  	
  31

  
	
   

  	
  §6.23

  	
  OFAC

  	
  32

  
	
   

  	
  §6.24

  	
  Financial Plaza Contract

  	
  32

  
	
   

  	
   

  	
   

  
	
  §7.

  	
  AFFIRMATIVE COVENANTS OF THE
  BORROWER

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §7.1

  	
  Punctual Payment

  	
  32

  
	
   

  	
  §7.2

  	
  Maintenance of Office

  	
  32

  
	
   

  	
  §7.3

  	
  Records and Accounts

  	
  33

  
	
   

  	
  §7.4

  	
  Financial Statements, Certificates and Information

  	
  33

  
	
   

  	
  §7.5

  	
  Notices

  	
  34

  
	
   

  	
  §7.6

  	
  Existence; Maintenance of REIT Status; Maintenance
  of Properties

  	
  35

  
	
   

  	
  §7.7

  	
  Insurance

  	
  35

  
	
   

  	
  §7.8

  	
  Taxes

  	
  35

  
	
   

  	
  §7.9

  	
  Inspection of Properties and Books

  	
  36

  
	
   

  	
  §7.10

  	
  Compliance with Laws, Contracts, Licenses, and
  Permits

  	
  36

  
	
   

  	
  §7.11

  	
  Use of Proceeds

  	
  36

  
	
   

  	
  §7.12

  	
  Reserved

  	
  36

  
	
   

  	
  §7.13

  	
  [Intentionally Omitted.]

  	
  36

  
	
   

  	
  §7.14

  	
  Interest Rate Protection

  	
  36

  
	
   

  	
  §7.15

  	
  Further Assurance

  	
  37

  
	
   

  	
  §7.16

  	
  Reserved

  	
  37

  
	
   

  	
  §7.17

  	
  Environmental Indemnification

  	
  37

  
	
   

  	
  §7.18

  	
  Response Actions

  	
  37

  
					



 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
  §7.19

  	
  Environmental Assessments

  	
  37

  
	
   

  	
  §7.20

  	
  Employee Benefit Plans

  	
  38

  
	
   

  	
  §7.21

  	
  More Restrictive Agreements

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  §8.

  	
  CERTAIN NEGATIVE COVENANTS OF
  THE BORROWER

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §8.1

  	
  Restrictions on Indebtedness

  	
  39

  
	
   

  	
  §8.2

  	
  Restrictions on Liens, Etc

  	
  39

  
	
   

  	
  §8.3

  	
  Restrictions on Investments

  	
  40

  
	
   

  	
  §8.4

  	
  Merger, Consolidation, Acquisition and Disposition
  of Properties

  	
  41

  
	
   

  	
  §8.5

  	
  Sale and Leaseback

  	
  42

  
	
   

  	
  §8.6

  	
  Compliance with Environmental Laws

  	
  42

  
	
   

  	
  §8.7

  	
  Distributions

  	
  42

  
	
   

  	
  §8.8

  	
  [Intentionally Omitted.]

  	
  42

  
	
   

  	
  §8.9

  	
  Related Companies

  	
  42

  
	
   

  	
  §8.10

  	
  Equity Pledges

  	
  43

  
	
   

  	
  §8.11

  	
  Employment Contract

  	
  43

  
	
   

  	
  §8.12

  	
  Sale of Other Assets

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  §9.

  	
  FINANCIAL COVENANTS OF THE
  BORROWER

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §9.1

  	
  Borrowing Base Value

  	
  43

  
	
   

  	
  §9.2

  	
  Minimum Debt Service Coverage

  	
  43

  
	
   

  	
  §9.3

  	
  Total Liabilities to Gross Asset Value

  	
  43

  
	
   

  	
  §9.4

  	
  Adjusted EBITDA to Interest Expense

  	
  43

  
	
   

  	
  §9.5

  	
  EBITDA to Fixed Charges

  	
  43

  
	
   

  	
  §9.6

  	
  Minimum Tangible Net Worth

  	
  44

  
	
   

  	
   

  	
   

  
	
  §10.

  	
  CONDITIONS TO EFFECTIVENESS

  	
  44

  
	
   

  	
   

  	
   

  
	
   

  	
  §10.1

  	
  Loan Documents

  	
  44

  
	
   

  	
  §10.2

  	
  Good Standing Certificates and Certified Copies

  	
  44

  
	
   

  	
  §10.3

  	
  By-laws; Resolutions

  	
  44

  
	
   

  	
  §10.4

  	
  Incumbency Certificate; Authorized Signers

  	
  44

  
	
   

  	
  §10.5

  	
  Opinions of Counsel Concerning Organization and Loan
  Documents

  	
  44

  
	
   

  	
  §10.6

  	
  Payment of Fees

  	
  44

  
	
   

  	
  §10.7

  	
  Compliance Certificate

  	
  45

  
	
   

  	
  §10.8

  	
  Validity of Liens

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  §11.

  	
  CONDITIONS TO ALL BORROWINGS

  	
  45

  
	
   

  	
   

  	
   

  
	
   

  	
  §11.1

  	
  Representations True; No Event of Default;
  Compliance Certificate

  	
  45

  
	
   

  	
  §11.2

  	
  No Legal Impediment

  	
  45

  
	
   

  	
  §11.3

  	
  Governmental Regulation

  	
  45

  
	
   

  	
  §11.4

  	
  Proceedings and Documents

  	
  45

  
	
   

  	
  §11.5

  	
  Revolving Credit Reinstatement Date

  	
  46

  
							



 


iii

















 


	
   

  	
   

  	
  Page

  
	
  §12.

  	
  EVENTS OF DEFAULT; ACCELERATION;
  ETC

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §12.1

  	
  Events of Default and Acceleration

  	
  46

  
	
   

  	
  §12.2

  	
  Termination of Commitments

  	
  48

  
	
   

  	
  §12.3

  	
  Remedies

  	
  49

  
	
   

  	
  §12.4

  	
  Distribution of Collateral Proceeds

  	
  49

  
	
   

  	
   

  	
   

  
	
  §13.

  	
  SETOFF

  	
  50

  
	
   

  	
   

  	
   

  
	
  §14.

  	
  THE AGENT

  	
  51

  
	
   

  	
   

  	
   

  
	
   

  	
  §14.1

  	
  Authorization

  	
  51

  
	
   

  	
  §14.2

  	
  Employees and Agents

  	
  51

  
	
   

  	
  §14.3

  	
  No Liability

  	
  51

  
	
   

  	
  §14.4

  	
  No Representations

  	
  51

  
	
   

  	
  §14.5

  	
  Payments

  	
  52

  
	
   

  	
  §14.6

  	
  Holders of Notes

  	
  53

  
	
   

  	
  §14.7

  	
  Indemnity

  	
  53

  
	
   

  	
  §14.8

  	
  Agent as Lender

  	
  53

  
	
   

  	
  §14.9

  	
  Resignation

  	
  53

  
	
   

  	
  §14.10

  	
  Notification of Defaults and Events of Default

  	
  54

  
	
   

  	
  §14.11

  	
  Duties in the Case of Enforcement

  	
  54

  
	
   

  	
  §14.12

  	
  Bankruptcy

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  §15.

  	
  EXPENSES

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  §16.

  	
  INDEMNIFICATION

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  §17.

  	
  SURVIVAL OF COVENANTS, ETC

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  §18.

  	
  ASSIGNMENT; PARTICIPATIONS; ETC

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  §18.1

  	
  Conditions to Assignment by Lenders

  	
  56

  
	
   

  	
  §18.2

  	
  Certain Representations and Warranties; Limitations;
  Covenants

  	
  57

  
	
   

  	
  §18.3

  	
  Register

  	
  57

  
	
   

  	
  §18.4

  	
  New Notes

  	
  58

  
	
   

  	
  §18.5

  	
  Participations

  	
  58

  
	
   

  	
  §18.6

  	
  Pledge by Lender

  	
  58

  
	
   

  	
  §18.7

  	
  No Assignment by Borrower

  	
  58

  
	
   

  	
  §18.8

  	
  Disclosure

  	
  59

  
	
   

  	
  §18.9

  	
  Mandatory Assignment

  	
  59

  
	
   

  	
  §18.10

  	
  Co-Agents

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  §19.

  	
  NOTICES, ETC

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  §20.

  	
  GOVERNING LAW; CONSENT TO
  JURISDICTION AND SERVICE

  	
  60

  
						



 


iv

















 


	
   

  	
   

  	
  Page

  
	
  §21.

  	
  HEADINGS

  	
  60

  
	
   

  	
   

  	
   

  
	
  §22.

  	
  COUNTERPARTS

  	
  61

  
	
   

  	
   

  	
   

  
	
  §23.

  	
  ENTIRE AGREEMENT

  	
  61

  
	
   

  	
   

  	
   

  
	
  §24.

  	
  WAIVER OF JURY TRIAL AND CERTAIN
  DAMAGE CLAIMS

  	
  61

  
	
   

  	
   

  	
   

  
	
  §25.

  	
  CONSENTS, AMENDMENTS, WAIVERS,
  ETC

  	
  61

  
	
   

  	
   

  	
   

  
	
  §26.

  	
  SEVERABILITY

  	
  62

  
	
   

  	
   

  	
   

  
	
  §27.

  	
  RELATIONSHIP

  	
  62

  
	
   

  	
   

  	
   

  
	
  §28.

  	
  DEALINGS WITH THE BORROWER

  	
  62

  
	
   

  	
   

  	
   

  
	
  §29.

  	
  NO UNWRITTEN AGREEMENTS

  	
  63

  
	
   

  	
   

  	
   

  
	
  §30.

  	
  TIME OF THE ESSENCE

  	
  63

  
	
   

  	
   

  	
   

  
	
  §31.

  	
  RIGHTS OF THIRD PARTIES

  	
  63

  
	
   

  	
   

  	
   

  
	
  §32.

  	
  PATRIOT ACT

  	
  63

  
	
   

  	
   

  	
   

  
	
  §33.

  	
  REINSTATEMENT OF REVOLVING
  CREDIT FACILITY

  	
  64

  
	
   

  	
   

  	
   

  
	
   

  	
  §33.1

  	
  Revolving Credit Conditions

  	
  64

  
	
   

  	
  §33.2

  	
  Extension of Maturity Date

  	
  65

  
	
   

  	
  §33.3

  	
  Commitment to Lend; Limitation on Total Commitment

  	
  65

  
	
   

  	
  §33.4

  	
  Additional Representations

  	
  65

  
	
   

  	
  §33.5

  	
  Appraisals

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  §34.

  	
  WAIVER OF CLAIMS

  	
  68

  



 


v

















 


EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  FORM OF
  REVOLVING CREDIT NOTE

  
	
  EXHIBIT B

  	
   

  	
  LOAN REQUEST

  
	
  EXHIBIT C

  	
   

  	
  COMPLIANCE
  CERTIFICATE

  
	
  EXHIBIT D

  	
   

  	
  FORM OF
  ASSIGNMENT AND ACCEPTANCE

  



 


SCHEDULES


 


	
  SCHEDULE 1

  	
   

  	
  LENDERS;
  DOMESTIC AND EURODOLLAR LENDING OFFICES

  
	
  SCHEDULE 1.1

  	
   

  	
  COMMITMENTS

  
	
  SCHEDULE 1.2

  	
   

  	
  [INTENTIONALLY
  OMITTED]

  
	
  SCHEDULE 1.3

  	
   

  	
  RELATED
  COMPANIES & UNCONSOLIDATED ENTITIES

  
	
  SCHEDULE 6.3

  	
   

  	
  PROPERTIES
  NOT OWNED BY THE BORROWER

  
	
  SCHEDULE 6.7

  	
   

  	
  LITIGATION

  
	
  SCHEDULE
  6.15

  	
   

  	
  RELATED
  PARTY TRANSACTIONS

  
	
  SCHEDULE
  6.18

  	
   

  	
  ENVIRONMENTAL
  MATTERS

  
	
  SCHEDULE
  6.22

  	
   

  	
  CONDEMNATION
  PROCEEDINGS

  
	
  SCHEDULE 8.1

  	
   

  	
  EXISTING
  INDEBTEDNESS

  
	
  SCHEDULE
  33.4(l)

  	
   

  	
  OPTION
  AGREEMENTS

  



 


i

















 


SECOND AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT


 


This SECOND
AMENDED AND RESTATED  REVOLVING CREDIT AGREEMENT
is made as of the 23rd day of January, 2006, by and among AMERIVEST
PROPERTIES INC., a Maryland corporation (the “Borrower”), KEYBANK NATIONAL ASSOCIATION, a national banking association
(“KeyBank”), the other lending institutions which are listed on Schedule 1
or hereafter become a party hereto (the “Lenders”), and KEYBANK
NATIONAL ASSOCIATION, as agent for itself and such other lending
institutions (the “Agent”).


 


WHEREAS, Borrower, Fleet
National Bank (“FNB”) and FNB as Agent entered into that certain Unsecured
Revolving Credit Agreement dated as of December 15, 2003, as amended by that
certain First Amendment to Unsecured Revolving Credit Agreement dated as of
March 16, 2004 (collectively, the “Original Credit Agreement”); and


 


WHEREAS, FNB has assigned its
position as a Lender to KeyBank, and FNB has resigned its position as Agent
under the Original Credit Agreement, and KeyBank has been appointed as the new
Agent;


 


WHEREAS, Borrower and KeyBank,
individually and as Agent, entered into that certain First Amended and Restated
Unsecured Revolving Credit Agreement dated as of October 20, 2004, as
amended by that certain First Amendment to Amended and Restated Unsecured
Revolving Credit Agreement dated as of August 31, 2005 and that certain
Second Amendment to Amended and Restated Unsecured Revolving Credit Agreement
dated as of September 14, 2005 (as amended, the “First Amended Credit
Agreement”);


 


WHEREAS, Borrower has requested
that the Lenders amend certain provisions of the First Amended Credit
Agreement;


 


WHEREAS, Agent, Borrower and
the Lenders desire to amend and restate the First Amended Credit Agreement in
its entirety;


 


NOW, THEREFORE, to accomplish
these purposes, the Agent, the Borrower and the Lenders hereby amend and
restate the First Amended Credit Agreement in its entirety and agree as
follows:


 


§1.          DEFINITIONS AND RULES OF
INTERPRETATION


 


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


 


Adjusted EBITDA.  EBITDA minus the Reserve Amount for all Real
Estate Assets owned by Borrower or any of the Related Companies.


 


Adjusted Net Operating Income.  For the Mortgaged Property, the Net Operating
Income for such Mortgaged Property for the six month period that ended as of
the end of the last


 

















 


preceding
quarter for which a Compliance Certificate has been delivered pursuant to
§7.4(d) or §10.7, multiplied by two (2), minus the Reserve Amount for such
Mortgaged Property.


 


Affiliated Lenders.  Any commercial bank which is (i) the parent
corporation of any of the Lenders originally listed on Schedule 1, (ii)
a wholly-owned subsidiary of any of the Lenders or (iii) a wholly-owned
subsidiary of the parent corporation of any of the Lenders.


 


Agent.  KeyBank National Association acting as agent
for the Lenders or any successor agent.


 


Agent’s Head Office.  The Agent’s head office located at 127 Public
Square, Cleveland, Ohio 44114-1306, or at such other location as the Agent may designate
from time to time.


 


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


 


Agreement Regarding Fees.  The Agreement Regarding Fees of even date
herewith between Borrower and KeyBank.


 


Appraisals.  Appraisals of the value of the Mortgaged
Property, prepared in writing independently and impartially by qualified
appraisers selected and retained by the Agent and paid for by Borrower, the
form and substance of such appraisals and final determination of market value
of the Mortgaged Property thereunder to be reviewed and subject to approval by
the Agent based on its internal appraisal review policies and procedures.  All appraisals shall be prepared in
accordance with the Uniform Standards of Professional Appraisal Practice,
Supplemental Standards Applicable to Federally Related Transactions, as further
described in Title XI of the “Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (“FIRREA”), and any additional standards and conditions
required for appraisals prepared for the Lenders. All Appraisals shall
disregard any value associated with any unimproved land located on the
applicable Mortgaged Property.


 


Appraised Value.  The market value of the Mortgaged Property,
determined by the Agent based on an Appraisal of such Mortgaged Property, after
discretionary adjustments of the value shown in such Appraisal following a
review by the Agent’s appraisal review department.


 


Arranger.  KeyBank Capital Markets or any successor.


 


Assignment and Acceptance.  See §18.


 


Assignment of Leases and Rents.  The first assignment of rents and leases from
the Mortgagor to the Agent pursuant to which the Mortgagor shall grant and
assign to the Agent as agent for the Lenders a security interest in and
assignment of the Mortgagor’s interest as lessor with respect to all Leases and
rents thereunder of all or any part of the Mortgaged Property as security for
the Obligations.


 


Balance Sheet Date.  September 30, 2005.


 


Borrower.  As defined in the preamble hereto.


 


2

















 


Borrowing Base Value.  For the Mortgaged Property, Borrowing Base
Value shall equal sixty percent (60%) of the Appraised Value of the Mortgaged
Property.


 


Borrowing Date.  The date on which any Loan is made or is to
be made, and the date on which any Loan is converted or continued in accordance
with §2.4.


 


Breakage Costs.  The cost to any Lender of re-employing funds
bearing interest at LIBOR, incurred (or expected to be incurred) in connection
with (i) any payment of any portion of the Loan bearing interest at LIBOR prior
to the termination of any applicable Interest Period, (ii) the conversion of a
LIBOR Loan to any other applicable interest rate on a date other than the last
day of the relevant Interest Period, or (iii) the failure of Borrower to draw
down, on the first day of the applicable Interest Period, any amount as to
which Borrower has elected a LIBOR Loan.


 


Buildings.  The buildings, structures and other
improvements now or hereafter located on the Mortgaged Property.


 


Building Service Equipment.  All apparatus, fixtures and articles of
personal property owned by the Mortgagor now or hereafter attached to or used
or procured for use in connection with the operation or maintenance of any
Building located on or included in the Mortgaged Property, including, but
without limiting the generality of the foregoing, all engines, furnaces,
boilers, stokers, pumps, heaters, tank, dynamos, motors, generators,
switchboards, electrical equipment, heating, plumbing, lifting and ventilating
apparatus, air cooling and air conditioning apparatus, gas and electric
fixtures, elevators, escalators, fittings, and machinery and all other
equipment of every kind and description, used or procured for use in the
operation of the Buildings (except apparatus, fixtures or articles of personal
property belonging to lessees or other occupants of such building or to persons
other than the Mortgagor unless the same be abandoned by any such lessee or
other occupant or person), together with any and all replacements thereof and
additions thereto.


 


Business Day.  Any day other than a Saturday, Sunday or day
which shall be in the State of Ohio a legal holiday or day on which banking
institutions are required or authorized to close and, in the case of LIBOR
Loans, also a day which is a LIBOR Business Day.


 


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


 


CERCLA.  See §6.18.


 


Change in Control.  The occurrence of any of the following
events: (A) if during any twelve month period on or after October 20, 2004
while any portion of the Loan remains outstanding or Lenders have any
obligation to make further Loans, individuals who at the beginning of such
period constituted the Board of Directors of the Borrower (together with any
new directors whose election by the Board of Directors or whose nomination for
election by the shareholders of the Borrower was approved by a vote of at least
a majority of the members of the Board of Directors then in office who either
were members of the Board of Directors at the beginning of such period or whose
election or nomination for election was previously so


 


3

















 


approved)
cease for any reason to constitute a majority of the members of the Board of
Directors then in office; or (B) if there occurs a change of control of the
Borrower of a nature that would be required to be reported in response to Item
1a of Form 8-K filed pursuant to Section 13 or 15 under the Securities Exchange
Act of 1934, or in any other filing by the Borrower with the Securities and
Exchange Commission; or (C) if the Borrower or any Related Company consolidates
with, is acquired by, or merges into or with any Person.


 


Closing Date.  The date upon which this Agreement shall
become effective pursuant to §10 and the initial Loan shall be advanced.


 


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


 


Collateral.  All of the properties of the Mortgagor that
are subject to the security interests, liens and mortgages created by the
Security Documents, including, without limitation, the Mortgaged Property and
the Leases.


 


Collateral Account Agreement.  The Amended and Restated Collateral Account
Agreement between AmeriVest Greenhill Inc., Agent and KeyBank as depository
with respect to the Reserve Account, and joined in by AmeriVest Chateau Inc.


 


Collateral Cash Flow.  The Adjusted Net Operating Income derived
from the Mortgaged Property.


 


Commitment.  With respect to each Lender, the amount set
forth from time to time on Schedule 1.1 hereto as the amount of such
Lender’s commitment to make Loans to the Borrower.


 


Compliance Certificate.  A certificate in the form of Exhibit C
hereto signed by a Responsible Officer setting forth in reasonable detail
computations evidencing compliance with the covenants contained in §9.1 through
§9.6, as applicable, and §8.3(d) and §8.7.


 


Controlled Unconsolidated
Entity.  An
Unconsolidated Entity to the extent that the Borrower has the authority to make
management decisions on behalf of such Unconsolidated Entity, or when this term
is used with respect to the negative covenants herein, an Unconsolidated Entity
in which the Borrower has the right or ability to prevent such Unconsolidated
Entity from taking the action which is prohibited by the applicable negative
covenant.


 


Conversion Request.  A notice given by the Borrower to the Agent
of its election to convert or continue a Loan in accordance with §2.4.


 


Default.  See §12.1.


 


Distribution.  The declaration or payment of any dividend or
distribution of cash or cash equivalents to the shareholders of the Borrower or
the limited partners of any operating partnership in which the Borrower is a
general partner.


 


Dollars or $.  Dollars in lawful currency of the United
States of America.


 


4

















 


Domestic Lending Office.  Initially, the office of each Lender
designated as such in Schedule 1.1 hereto; thereafter, such other office
of such Lender, if any, located within the United States that will be making or
maintaining Prime Rate Loans.


 


EBITDA.  For any period of calculation and without
duplication, net income (loss) of Borrower for such period (determined in
accordance with Generally Accepted Accounting Principles, before allocations to
minority interests and excluding all amounts attributable to the net income or
net losses of Unconsolidated Entities) plus the sum of the following amounts
(but only to the extent included in determining net income (loss) for such
period):  (a) depreciation and
amortization expense of Borrower for such period plus (b) Interest Expense
for such period plus (c) income tax expense of Borrower in respect of such
period plus (d) extraordinary losses of Borrower, losses from the sale of
assets of Borrower and losses resulting from forgiveness of debt by Borrower,
all for such period minus (e) extraordinary gains of Borrower and gains
from the sale of assets of Borrower for such period plus (f) any cash
dividends or distributions actually received (and not reinvested) by Borrower
from its Unconsolidated Entities.


 


Effective Date.  The date upon which this Agreement shall
become effective pursuant to §10.


 


Eligible Assignee.  Any of (a) a commercial bank organized under
the laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000; (b) a savings
and loan association or savings bank organized under the laws of the United
States, or any State thereof or the District of Columbia, and having a net
worth of at least $100,000,000, calculated in accordance with Generally
Accepted Accounting Principles; (c) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), or a political subdivision of any
such country, and having total assets in excess of $1,000,000,000, provided
that such bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the OECD;
(d) the central bank of any country which is a member of the OECD; (e) an
insurance company and other institutional investor having a net worth of at
least $100,000,000 that, in the reasonable judgment of the Agent, has
substantial experience in real estate lending or investing in loans similar to
the Loans; (f) an investment fund or similar entity having a net worth of at
least $100,000,000 that is engaged in making, purchasing or holding bank loans
or similar extensions of credit and that is managed by an investment advisor that,
in the reasonable judgment of the Agent, has substantial experience in real
estate lending or investing in loans similar to the Loans or (g) an Affiliated
Lender, provided, however that neither the Borrower, any of the Related
Companies or any of the Unconsolidated Entities nor any affiliate thereof shall
be Eligible Assignees.


 


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


 


Employment Contract.  An employment agreement between Borrower and
Charles Knight, pursuant to which Charles Knight agrees to perform services for
the Borrower as Chief Executive Officer and President, such agreement to have a
term ending not sooner than the repayment of the Loans and otherwise being in
form and substance satisfactory to Agent.


 


5

















 


Environmental Laws.  See §6.18(a).


 


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


 


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


 


ERISA Reportable Event.  A reportable event with respect to a
Guaranteed Pension Plan within the meaning of §4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has
not been waived.


 


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


 


Event of Default.  See §12.1.


 


Facility Percentage.  With respect to each Lender, the percentage
set forth from time to time on Schedule 1.1 hereto as such Lender’s
percentage of the Total Commitment.


 


Federal Funds Effective Rate.  For any day, the rate per annum (rounded upward
to the nearest one-hundredth of one percent (1/100 of 1%)) announced by the
Federal Reserve Bank of Cleveland on such day as being the weighted average of
the rates on overnight federal funds transactions arranged by federal funds
brokers on the previous trading day, as computed and announced by such Federal
Reserve Bank in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the “Federal Funds
Effective Rate.”


 


Financial Plaza Contract.
 That certain Agreement of Purchase and
Sale dated December 16, 2005 between AmeriVest Mesa Inc., as seller, and
Crescent Real Estate Equities Limited Partnership, as purchaser, which provides
for the purchase and sale of the Real Estate commonly known as Financial Plaza.


 


First Amended Credit Agreement.  As defined in the preamble.


 


Fixed Charges.  With respect to any fiscal period of the
Borrower, an amount equal to the sum of (i) Interest Expense (but excluding any
amortization or write-off of one-time upfront loan fees included in Interest
Expense for such period), (ii) regularly scheduled installments of principal
payable with respect to all Indebtedness of Borrower and the Related Companies,
excluding any balloon payments due at the maturity of such Indebtedness, plus
(iii) all dividend payments due to the holders of any preferred stock of the
Borrower.


 


6

















 


Funds From Operations.  With respect to any fiscal period of the
Borrower, an amount equal to net income (computed in accordance with Generally
Accepted Accounting Principles) from the operation of Real Estate Assets,
excluding gains (or losses) from debt restructuring and sales of property, plus
real estate depreciation and amortization, and after adjustments for
unconsolidated partnerships and joint ventures; provided, however, in the event
that Borrower shall not have owned a Real Estate Asset for the entire previous
four fiscal quarters, then for the purpose of determining the Funds From
Operation with respect to such Real Estate Asset, the net income (computed in
accordance with Generally Accepted Accounting Principles) for such Real Estate
Asset shall be annualized in a manner reasonably acceptable to Agent.  Adjustments for unconsolidated partnerships
and joint ventures will be calculated to reflect funds from operations on the
same basis.


 


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


 


Greenhill.  AmeriVest Greenhill Inc., a Texas
corporation.


 


Gross Asset Value.  At any date, Borrower’s total assets,
adjusted to add back the accumulated depreciation of its real estate assets,
all as determined in accordance with Generally Accepted Accounting Principals
as of such date.


 


Guaranteed Pension Plan.  Any employee pension benefit plan within the
meaning of §3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.


 


Guaranty.  The Guaranty from Mortgagor to the Agent
pursuant to which Mortgagor shall guarantee the Obligations.


 


Hazardous Substances.  See §6.18(b).


 


Indebtedness.  All obligations, contingent and otherwise,
that in accordance with Generally Accepted Accounting Principles should be
classified upon the obligor’s balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including, without limitation,
all of the following, whether or not so classified: (a) the Obligations, (b)
all debt and similar monetary obligations, whether direct or indirect; (c) all
liabilities secured by any mortgage, pledge, negative pledge, security
interest, lien, negative lien, charge, or other encumbrance existing on
property owned or acquired subject thereto, whether or not the liability
secured thereby shall have been assumed; (d) all guarantees, endorsements and
other contingent obligations whether direct or indirect in respect of
indebtedness or obligations of others, including any liability as the general
partner of a partnership, any obligation to supply funds to or


 


7

















 


 in any manner to invest in, directly or
indirectly, the debtor, to purchase indebtedness, or to assure the owner of
indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit; and (e) such obligor’s
liabilities, contingent or otherwise of the type set forth in (a) through
(d) above, under any joint venture, limited liability company or partnership
agreement.


 


Indemnity Agreement.  The Indemnity Agreement Regarding Hazardous
Materials from the Borrower and Mortgagor to the Agent and the Lenders pursuant
to which the Borrower and Mortgagor shall, among other things, indemnify the
Agent and the Lenders from all environmental liability on or affecting the
Mortgaged Property in accordance with the terms thereof.


 


Intangible Assets.  Collectively, (i) the amount (to the extent
reflected in determining Borrower’s total assets) of all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of assets
of a going concern business made within 12 months after the acquisition of such
business) in the book value of any asset (other than real property assets)
owned by Borrower, and (ii) goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry forwards, copyrights,
organization or developmental expenses, deferred financing costs, and other
intangible assets.


 


Interest Expense.  With respect to any fiscal period of the
Borrower, an amount equal to the sum of the following with respect to all
Indebtedness of the Borrower and the Related Companies: (i) total interest
expense, accrued in accordance with Generally Accepted Accounting Principles
plus (ii) all capitalized interest determined in accordance with Generally
Accepted Accounting Principles.  Interest
Expense shall not include any write-off of unamortized financing fees relating
to the Original Credit Agreement or the First Amended Credit Agreement.


 


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


 


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


 


(A)          if any Interest Period with respect to a LIBOR Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest Period
shall be extended to the next succeeding LIBOR Business Day unless the result
of such extension would be to carry such


 


8

















 


Interest
Period into another calendar month, in which event such Interest Period shall
end on the immediately preceding LIBOR Business Day;


 


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


 


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


 


(D)          any Interest Period relating to any LIBOR Loan that begins
on the last LIBOR 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 LIBOR Business Day of a calendar month;
and


 


(E)           any Interest Period relating to any LIBOR Loan that would
otherwise extend beyond the Maturity Date shall end on the Maturity Date.


 


Investments.  All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock, partnership
or membership interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be included as an Investment
all interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.


 


KeyBank.  See preamble.


 


Leases.  Leases, licenses and agreements whether
written or oral, relating to the use or occupation of space in or on the
Mortgaged Property by persons other than the Mortgagor.


 


Lenders.  KeyBank and the other lending institutions
listed from time to time on Schedule 1 hereto and any other Person who
becomes an assignee of any rights of a Lender pursuant to §18 or a Person who
acquires all or substantially all of the stock or assets of a Lender.


 


LIBOR.  For any LIBOR Loan for any Interest Period,
the average rate (rounded upwards to the nearest 1/16th) as shown in Dow Jones
Markets (formerly Telerate) (Page 3750) at which deposits in U.S. dollars are
offered by first class banks in the London Interbank Market at approximately
11:00 a.m. (London time) on the day that is two (2) LIBOR Business Days prior


 


9

















 


to the first
day of such Interest Period with a maturity approximately equal to such
Interest Period and in an amount approximately equal to the amount to which
such Interest Period relates, adjusted for reserves and taxes if required by
future regulations.  If Dow Jones Markets
no longer reports such rate or Agent determines in good faith that the rate so
reported no longer accurately reflects the rate available to Agent in the
London Interbank Market, Agent may select a replacement index.  For any period during which a Reserve
Percentage shall apply, LIBOR with respect to LIBOR Loans shall be equal to the
amount determined above divided by an amount equal to 1 minus the Reserve
Percentage.


 


LIBOR Business Day.  Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London,
England.


 


LIBOR Lending Office.  Initially, the office of each Lender
designated as such in Schedule 1.1 hereto; thereafter, such other office
of such Lender, if any, that shall be making or maintaining LIBOR Loans.


 


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


 


LIBOR Prepayment Fee.  See §3.3(a).


 


Liens.  See §8.2.


 


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


 


Loan Request.  See §2.5.


 


Loans.  The Loans made or to be made by the Lenders
to the Borrower pursuant to §2 or §33.3.


 


Major Leases.  A Lease of 12,000 square feet or more of the
gross leasable area of a Building located on a Mortgaged Property and any
guaranty of such Lease.


 


Majority Lenders.  As of any date, the Lenders whose aggregate
Facility Percentages constitute at least fifty-one percent (51%).


 


Material Adverse Effect.  A material adverse effect on (i) any of the
Real Estate, (ii) the business, results of operations or financial condition of
the Borrower and the Related Companies taken as a whole, (iii) the ability of
the Borrower to perform its obligations under the Loan Documents, or (iv) the
validity or enforceability of any of the Loan Documents or the remedies or
material rights of the Agent or the Lenders thereunder.


 


Maturity Date.  April 1, 2006, as the same may be
extended as provided in §33.2, or such earlier date on which the Loans shall
become due and payable pursuant to the terms hereof.


 


Maximum Credit Amount.  Maximum Credit Amount shall mean the least of
the following: (i) the maximum amount of Outstanding Obligations without
causing a violation of


 


10

















 


§9.1; (ii) the
maximum amount of Outstanding Obligations without causing a violation of §9.2;
and (iii) $10,000,000.00.


 


Mortgaged Property.  The (a) Real Estate Asset owned by Mortgagor,
as such Real Estate Asset is more particularly described in the Security Deed;
and (b) all other property incident to any of same described in any Security
Document.


 


Mortgagor.  With respect to the Mortgaged Property,
Greenhill as the owner thereof.


 


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


 


Named Executive.  Charles Knight.


 


Net Operating Income.  With respect to any fiscal period of the
Borrower and with respect to any one or more of the Real Estate Assets, the
total rental and other income from the operation of such Real Estate Assets,
after deducting all expenses and other proper charges incurred by the Borrower
in connection with the operation of such Real Estate Assets during such fiscal
period, including, without limitation, real estate taxes and bad debt expenses,
but before payment or provision for debt service charges, income taxes, and
depreciation, amortization, and other non-cash expenses, all as determined in
accordance with Generally Accepted Accounting Principles except that there
shall be no rent leveling adjustments made when computing Net Operating Income.


 


Net Sales Proceeds.  With respect to the sale of a Real Estate
Asset, the gross sales price payable by the purchaser thereof less all
actual costs of sale that are charged to the seller of the Real Estate Asset
and payable to third parties unrelated to or unaffiliated with Borrower or
Mortgagor, including without limitation, title insurance charges, escrow fees,
legal fees, real estate taxes, transfer taxes, and real estate brokers’
commissions.  In the event that any such
costs are payable to a Person related to or affiliated with Borrower or
Mortgagor, such payments shall be subject to the approval of Agent.


 


Notes.  See §2.2.


 


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


 


OFAC.  Office of Foreign Asset Control of the
Department of the Treasury of the United States of America.


 


Original Credit Agreement.  As defined in the preamble.


 


11

















 


Outstanding.  With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.


 


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


 


Patriot Act.  The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, as the same may be amended from time to time, and corresponding
provisions of future laws.


 


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


 


Permits.  All governmental permits, licenses, and
approvals necessary for the lawful operation and maintenance of the Mortgaged
Property.


 


Permitted Liens.  Liens, security interests and other
encumbrances permitted by §8.2.


 


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


 


Prepayment Date.  See §3.3.


 


Prime Rate.  The greater of (a) the variable per annum
rate of interest designated from time to time by KeyBank as its Prime Rate or
(b) one percent (1%) in excess of the Federal Funds Effective Rate.  The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate being charged to any
customer.  Changes in the rate of
interest resulting from changes in the Prime Rate shall take place immediately
without notice or demand of any kind.


 


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


 


Pro Forma Debt Service Charges.  For any fiscal period of the Borrower, an
amount determined by the Agent based on the higher of (A) a seven percent
(7.00%) constant on the Pro Forma Principal Amount or (B) the sum of the
monthly principal and interest payments that would be due during such fiscal
period based on a twenty five (25) year mortgage style amortization schedule,
calculated on the Pro Forma Principal Amount and an interest rate equal to the
then current ten (10) year U.S. Treasury note yield plus two and one half
percent (2.5%).


 


Pro Forma Principal Amount.  (a) With respect to Compliance Certificates
delivered pursuant to §7.4(d), the Outstanding Obligations at the end of the
applicable fiscal quarter; (b) with respect to Compliance Certificates
delivered pursuant to §2.5, the Outstanding Obligations after giving effect to
the requested Loan; (c) with respect to Compliance Certificates delivered
pursuant to §8.4(c) or §33.1(b)(viii), the principal amount outstanding after
giving effect to any proposed transaction including any payments on the Loans
in connection therewith.


 


12

















 


Properties.  All Real Estate Assets, Real Estate, and all
other assets, including, without limitation, intangibles and personalty owned
by the Borrower.


 


Real Estate.  All real property at any time owned, leased
(as lessee or sublessee) or operated by the Borrower, or any of the Related
Companies or any Controlled Unconsolidated Entity (including without limitation
the Mortgaged Property).


 


Real Estate Assets.  Those fixed and tangible properties
consisting of land, buildings and/or other improvements owned by the Borrower,
by any of the Related Companies or by any Controlled Unconsolidated Entity at
the relevant time of reference thereto, including without limitation the
Mortgaged Property, but excluding all leaseholds other than leaseholds under
ground leases having an unexpired term of 30 years or more.


 


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


 


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


 


Release.  See §6.18(c)(iii).


 


Reserve Account.  See §5.4


 


Reserve Amount.  With respect to any Real Estate Assets or
group of Real Estate Assets, a normalized annual reserve for capital
expenditures, replacement reserves and leasing costs at the rate of $0.25 per
year per square foot of net leasable area contained in all buildings on such
Real Estate Assets.


 


Reserve Percentage.  For any Interest Period, that percentage
which is specified three (3) Business Days before the first day of such
Interest Period by the Board of Governors of the Federal Reserve System (or any
successor) or any other governmental or quasi-governmental authority with
jurisdiction over Agent or any Lender for determining the maximum reserve
requirement (including, but not limited to, any marginal reserve requirement)
for Agent or any Lender with respect to liabilities constituting of or
including (among other liabilities) Eurocurrency liabilities in an amount equal
to that portion of the Loan affected by such Interest Period and with a
maturity equal to such Interest Period.


 


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


 


Revolving Credit Conditions.  See §33.1.


 


Revolving Credit Reinstatement
Date.  The date
upon which the Revolving Credit Conditions are satisfied.


 


13

















 


Security Deed.  The first deed of trust from Mortgagor to the
Agent pursuant to which Mortgagor shall mortgage or convey the Mortgaged
Property as security for the Obligations.


 


Security Documents.  The Security Deed, the Assignment of Leases
and Rents, the Collateral Account Agreement, the Guaranty, the Subordination,
Attornment and Non-Disturbance Agreements and the UCC-1 financing statements.


 


Subordination, Attornment and
Non-Disturbance Agreement.  An agreement among and executed by the Agent,
the Mortgagor and a tenant under a Lease pursuant to which such tenant agrees
to subordinate its rights under the Lease to the lien of a Security Deed and
agrees to recognize the Agent or its successor in interest as landlord under
the Lease in the event of a foreclosure or other transfer under the Security
Deed and the Agent agrees to not disturb the possession of the tenant so long as
there is no default beyond applicable grace periods under the Lease.


 


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


 


Tangible Net Worth.  At any date, Borrower’s total assets,
adjusted to add back the accumulated depreciation of its real estate assets,
less its Intangible Assets, less its Total Liabilities, all as determined in
accordance with Generally Accepted Accounting Principals as determined as of
such date.


 


Termination For Cause.  Termination by Borrower of Named Executive’s
employment by reason of (a) Named Executive’s (i) failure to adhere to
written policies of Borrower, which failure has a material adverse effect on
Borrower, (ii) appropriation (or attempted appropriation) of a material
business opportunity of Borrower, including attempting to secure or securing
any personal profit or benefit in connection with any transaction entered into
on behalf of Borrower, or (iii) misappropriation (or attempted
misappropriation) of any of Borrower’s funds or property, or (b) the
conviction of, the indictment (or its procedural equivalent) for or the entry
of a guilty plea or plea of no contest by Named Executive with respect to, a
felony, the equivalent thereof, or any other crime with respect to which
imprisonment is a possible punishment.


 


Total Commitment.  The sum of the Commitments of the Lenders, as
in effect from time to time.  From and
after the Revolving Credit Reinstatement Date, the Total Commitment shall be
$10,000,000.00.


 


Total Liabilities.  The sum, without duplication of (i) all
consolidated liabilities of the Borrower determined in accordance with the
accounting principles used in the preparation of the financial statements
delivered pursuant to §7.4, including capital leases, accounts payable, accrued
expenses, mortgage payables, notes payable, senior notes, convertible
debentures, subordinated debentures, and secured or unsecured debt owed to
banks or other financial institutions, (ii) all Indebtedness of the Borrower
whether or not so classified, including, without limitation, all outstanding
Loans under this Agreement, (iii) the balance available for drawing


 


14

















 


under letters
of credit issued for the account of the Borrower and (iv) Borrower’s
Unconsolidated Entity Percentage of the Indebtedness of all Unconsolidated
Entities.


 


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


 


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


 


Unconsolidated Entity
Percentage. 
With respect to any Unconsolidated Entity, the percentage interest of
the Borrower or any Related Company in such Unconsolidated Entity which shall
be the greatest of the following: (a) the relative nominal direct and indirect
ownership interest owned by Borrower or any Related Company (expressed as a
percentage) in such Unconsolidated Entity, (b) the proportion (expressed as a
percentage) of Borrower’s relative contingent liability for the Indebtedness of
such Unconsolidated Entity to that entity’s total Indebtedness, or (c) the
relative and indirect economic interest owned by Borrower or any Related
Company (calculated as a percentage) in such Unconsolidated Entity determined
in accordance with the applicable provisions of the declaration of trust,
articles or certificate of incorporation, articles of organization, partnership
agreement, limited liability operating agreement, joint venture agreement or
other applicable organizational document of such Unconsolidated Entity.


 


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


 


§1.2         Rules of Interpretation.


 


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


 


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


 


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


 


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


 


(e)           Accounting terms not otherwise
defined herein have the meanings assigned to them by Generally Accepted
Accounting Principles applied on a consistent basis by the accounting entity to
which they refer and, except as otherwise expressly stated, all use of


 


15

















 


accounting terms with respect to the Borrower shall
reflect the consolidation of the financial statements of Borrower and the
Related Companies.


 


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


 


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


 


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


 


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


 


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


 


§2.          LOAN FACILITY.


 


§2.1         Commitment to Lend.  Notwithstanding anything contained in this
Agreement (including, without limitation, §2 hereof) or any other Loan Document
to the contrary, but subject to the terms of §33.3, (i) the obligation of the
Lender to make Loans to the Borrower pursuant to the Loan Agreement are not
revolving in nature, (ii) all Outstanding Obligations as of the date hereof and
any additional Loans made to the Borrower pursuant to this Agreement shall be
deemed to be term loans, and once repaid or prepaid the amount of such
repayment or prepayment shall not be available for reborrowing under this
Agreement and (iii) subject to the terms of §33.3, all further Loans made
pursuant to the Loan Agreement shall be subject to the Agent’s approval in its
sole and absolute discretion.  From and
after the satisfaction of the Revolving Credit Requirements, Borrower may
obtain Loans from the Lenders as provided in §33.3.  As of the date of this Agreement, Borrower
acknowledges that, prior to any advances made by Lender to fund closing costs
of this transaction, the Outstanding Obligations equal $29,897,127.99.  Borrower acknowledges that the Total
Commitment is less than the aggregate principal face amount of the Notes.


 


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


 


16

















 


Upon receipt of an affidavit of an officer of any
Lender as to the loss, theft, destruction or mutilation of its Note or any
other security document which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon cancellation of such Note or
other security document, Borrower will issue, in lieu thereof, a replacement
Note or other security document in the same principal amount thereof and
otherwise of like tenor.  By delivery of
the Notes, there shall not be deemed to have occurred, and there has not
otherwise occurred, any payment, satisfaction or novation of the Indebtedness
evidenced by the “Notes” described in the First Amended Credit Agreement, which
Indebtedness is instead allocated among the Lenders as of the date hereof and
evidenced by the Notes and their respective Facility Percentages, and the
Lenders shall as of the date hereof make such adjustments to the outstanding
Loans of such Lenders so that such outstanding Loans are consistent with their
respective Facility Percentages.


 


§2.3         Interest on Loans.


 


(a)           Each Prime Rate Loan shall bear
interest for the period commencing with the Borrowing Date thereof and ending
on the last day of the Interest Period with respect thereto at the rate per
annum equal to 2.75% above the Prime Rate. 
From and after the Revolving Credit Reinstatement Date, each Prime Rate
Loan shall bear interest for the period commencing with the Borrowing Date
thereof and ending on the last day of the Interest Period with respect thereto
at the rate per annum equal to 2.50% (or, if Borrower shall at any time make
the Distribution permitted by §8.7, 2.75%) above the Prime Rate.


 


(b)           Each LIBOR Loan shall bear interest
for the period commencing with the Borrowing Date thereof and ending on the
last day of the Interest Period with respect thereto at the rate per annum
equal to 3.50% above LIBOR determined for such Interest Period.  From and after the Revolving Credit
Reinstatement Date, each LIBOR Loan shall bear interest for the period
commencing with the Borrowing Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to 2.50% (or,
if Borrower shall at any time make the Distribution permitted by §8.7, 3.00%)
above LIBOR determined for such Interest Period.


 


(c)           The Borrower unconditionally promises
to pay interest on each Loan in arrears on each Interest Payment Date with
respect thereto.


 


§2.4         Conversion Options.


 


(a)           The Borrower may elect from time to
time to convert any outstanding Loan to a Loan of another Type, provided that
(i) with respect to any such conversion of a LIBOR Loan to a Prime Rate Loan,
the Borrower shall give the Agent at least three (3) Business Days, prior
written notice of such election; (ii) with respect to any such conversion of a
LIBOR Loan into a Prime Rate Loan, such conversion shall only be made on the
last day of the Interest Period with respect thereto; (iii) subject to the
further proviso at the end of this section and subject to §2.4(b) and §2.4(d)
hereof with respect to any such conversion of a Prime Rate Loan to a LIBOR
Loan, the Borrower shall give the Agent at least three (3) LIBOR Business Days,
prior written notice of such election and (iv) no Loan may be converted into a
LIBOR Loan when any Default or Event of Default has occurred and is continuing.
On the date on which such conversion is being made, each Lender shall take such
action as is necessary to transfer its


 


17

















 


Facility Percentage of such Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. All or any part
of outstanding Loans of any Type may be converted as provided herein, provided
further that each Conversion Request relating to the conversion of a Prime Rate
Loan to a LIBOR Loan shall be for an amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall be irrevocable by the
Borrower.


 


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


 


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


 


(d)           The Borrower may not elect to convert
a Prime Rate Loan to a LIBOR Loan pursuant to §2.4(a) or elect to continue a
LIBOR Loan pursuant to §2.4(b) if, after giving effect thereto, there would be
greater than five (5) LIBOR Loans outstanding. 
Any Loan Request for a LIBOR Loan that would create greater than five
(5) LIBOR Loans outstanding shall be deemed to be a Conversion Request for a
Prime Rate Loan.


 


§2.5         Requests for Loans.  The Borrower shall give to the Agent written
notice in the form of Exhibit B hereto of each Loan requested hereunder
(a “Loan Request”) no less than (a) one (1) Business Day prior to the proposed
Borrowing Date of any Prime Rate Loan and (b) three (3) LIBOR Business Days
prior to the proposed Borrowing Date of any LIBOR Loan.  Each such notice shall specify (i) the
principal amount of the Loan requested, (ii) the proposed Borrowing Date of
such Loan, (iii) the Interest Period for such Loan, and (iv) the Type of such
Loan, and shall be accompanied by a Compliance Certificate based on the most
recent certificate delivered pursuant to §7.4(d) with updated calculations
evidencing compliance with the covenants contained in §9.1 through §9.6 hereof,
as applicable, after giving effect to such requested Loan.  Within one (1) Business Day after receipt of
a Loan Request, the Agent shall provide to each of the Lenders by facsimile a
copy of such Loan Request and accompanying Compliance Certificate and each
Lender shall, within 24 hours thereafter, notify the Agent if it believes that
any of the conditions contained in §11 of this Agreement has not been met or
waived.  If such a notice is given the
Majority Lenders shall promptly determine whether all of the conditions
contained in §11 of this Agreement have been met or waived.  If no such notice is given by any Lender or
if following such notice the Majority Lenders determine that the conditions
contained in §11 have been met or waived, each of the Lenders shall be
obligated to fund its Facility Percentage of the requested Loans.  Each such Loan Request shall be irrevocable
and binding on the Borrower and the Borrower shall be obligated to accept the
Loan requested from the Lenders on the proposed Borrowing Date.  Each Loan Request shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.


 


18

















 


§2.6         Funds for Loans.


 


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


 


(b)           The Agent may, unless notified to the
contrary by any Lender prior to a Borrowing Date, assume that such Lender has
made available to the Agent on such Borrowing Date the amount of such Lender’s
Facility Percentage of the Loans to be made on such Borrowing Date, and the
Agent may (but it shall not be required to), in reliance upon such assumption,
make available to the Borrower a corresponding amount.  If any Lender makes available to the Agent
such amount on a date after such Borrowing Date, such Lender shall pay to the
Agent on demand an amount equal to the product of (i) the average computed for
the period referred to in clause (iii) below, of the Federal Funds Effective
Rate during each day included in such period, times (ii) the amount of such
Lender’s Facility Percentage of such Loans, time (iii) a fraction, the
numerator of which is the number of days or portion thereof that elapsed from
and including such Borrowing Date to the date on which the amount of such
Lender’s Facility Percentage of such Loans shall become immediately available
to the Agent, and the denominator of which is 365.  A statement of the Agent submitted to such
Lender with respect to any amounts owing under this paragraph shall be prima
facie evidence of the amount due and owing to the Agent by such Lender.  If such Lender does not pay such
corresponding amount upon the Agent’s demand therefor, the Agent will promptly
notify the Borrower, and the Borrower shall promptly pay such corresponding
amount to the Agent.  The Agent shall
also be entitled to recover from the Borrower interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Agent to the Borrower to the date such corresponding amount is
recovered by the Agent at a per annum rate equal to the applicable rate for
such Loan.


 


§3.          REPAYMENT OF THE LOANS.


 


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


 


19

















 


§3.2         Mandatory Repayments of Loan.


 


(a)           If at any time the sum of the
Outstanding Obligations exceeds (i) prior to the Revolving Credit Reinstatement
Date, the Total Commitment (which is currently $35,611,832.49), or (ii) from
and after the Revolving Credit Reinstatement Date, the Maximum Credit Amount,
then the Borrower shall immediately pay the amount of such excess to the Agent
for the respective accounts of the Lenders for application to the Loans.


 


(b)           [Intentionally Omitted.]


 


(c)           The proceeds distributed to or
received by or on behalf of the Borrower or any Related Company or, in the case
of any Unconsolidated Entity, the proceeds actually distributed to or received
by or on behalf of the Borrower or any Related Company by such Unconsolidated
Entity, (i) from each and every sale or refinancing of or other capital event
with respect to any asset [(other than office equipment and furnishings in the
ordinary course of business)] of the Borrower, any Related Company or any
Unconsolidated Entity (including a casualty or condemnation, return of capital
or repayment of debt held by the Borrower or any Related Company with respect
to such assets or any of such Person’s direct or indirect interest therein),
less all reasonable and customary closing costs, expenses and commissions paid
to unrelated parties and less any Indebtedness secured by such asset to be
satisfied as a part of such sale or refinance and (ii) from each and every
sale, financing, or refinancing of, or transaction which results in the
dilution of, the Borrower’s, direct or indirect ownership interest in any of
the Related Companies or any Unconsolidated Entity, shall be promptly paid to
the Agent for the account of the Lenders after receipt thereof by the Borrower
such Related Company or such Unconsolidated Entity as a prepayment of the Loans
to the extent of the outstanding balance of the Loans.  The Borrower agrees that the Borrower shall,
promptly, upon the Borrower’s belief that such event may occur, provide notice
to Agent of any proposed or contemplated event described in this §3.2(c).  The provisions of this §3.2(c) shall not
apply to any such event occurring with respect to the Mortgaged Property.


 


§3.3         Optional Repayments of Loans.


 


(a)           The Borrower shall have the right, at
its election, to repay the outstanding amount of the Loans, as a whole or in
part, on any Business Day, without penalty or premium; provided that the full
or partial prepayment of the outstanding amount of any LIBOR Loans made
pursuant to this §3.3 may be made only on the last day of the Interest Period
relating thereto, except as set forth below in this §3.3. The Borrower shall
give the Agent no later than 10:00 a.m., Cleveland time, at least two (2)
Business Days’ prior written notice of any prepayment pursuant to this §3.3 of
any Prime Rate Loans and four (4) LIBOR Business Days, notice of any proposed
repayment pursuant to this §3.3 of any LIBOR Loans, specifying the proposed
date of payment of Loans and the principal amount to be paid.  The Agent shall promptly notify each Lender
of the principal amount of such payment to be received by such Lender. Each
such partial prepayment of the Loans shall be in an integral multiple of
$1,000,000 and, to the extent requested by the Agent, shall be accompanied by
the payment of all charges outstanding on all Loans and of accrued interest on
the principal repaid to the date of payment. The principal payments so received
shall be applied first to the principal of Prime Rate Loans and then to the
principal of LIBOR Loans. 
Notwithstanding anything contained herein to the


 


20

















 


contrary, the Borrower may make a full or partial
prepayment of a LIBOR Loan on a date other than the last day of the Interest
Period relating thereto, if all optional prepayments (in whole or in part) on
such Loans shall be accompanied by, and the Borrower hereby promises to pay,
the Breakage Costs.


 


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


 


§3.4         Effect of Prepayments.  Amounts of the Loans prepaid under §3.2 or
§3.3 may not be reborrowed; provided that from and after the Revolving Credit
Reinstatement Date, any portion of the Loans that is prepaid may be reborrowed.


 


§4.          CERTAIN GENERAL PROVISIONS.


 


§4.1         Facility Fees.  On the Closing Date, and on other dates
specified in the Agreement Regarding Fees, the Borrower shall pay to KeyBank
the fees with respect to the Loan in the amounts specified in the Agreement
Regarding Fees.  All such fees shall be
fully earned when paid and nonrefundable under any circumstances.


 


§4.2         Unused Fee.  From and after the Revolving Credit
Reinstatement Date, the Borrower shall pay to the Agent for the accounts of the
Lenders in accordance with their respective Facility Percentages an Unused Fee
calculated at the rate of 0.50% per annum on the daily amount by which the
Total Commitment exceeds the Outstanding Obligations for each calendar month.  The Unused Fee shall be payable monthly in
arrears on or before the third Business Day of each calendar month for the
immediately preceding calendar month commencing on the first such date
following the date hereof, with a final payment on the Maturity Date or any
earlier date on which the Commitments shall terminate.


 


§4.3         [Intentionally Omitted.]


 


§4.4         Funds for Payments.


 


(a)           All payments of principal, interest,
closing fees, commitment fees and any other amounts due hereunder (other than
as provided in §4.1, §4.6 and §4.7) or under any of the other Loan Documents,
and all prepayments, shall be made to the Agent, for the respective accounts of
the Lenders, at the Agent’s Head Office, in each case in Dollars in immediately
available funds.


 


(b)           All payments by the Borrower
hereunder and under any of the other Loan Documents shall be made without
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory liens, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the


 


21

















 


Borrower is compelled by law to make such deduction or
withholding.  If any such obligation is
imposed upon the Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower shall pay to the Agent, for
the account of the Lenders or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable the
Lenders or the Agent to receive the same net amount which the Lenders or the
Agent would have received on such due date had no such obligation been imposed
upon the Borrower. The Borrower will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such other
Loan Document.


 


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


 


§4.6         Additional Costs, Etc.  If any present or future applicable law
(which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Agent by any central bank or other
fiscal, monetary or other authority, whether or not having the force of law),
shall:


 


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


 


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


 


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


 


22

















 


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


 


and the result of any of the foregoing is


 


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


 


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


 


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


 


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


 


§4.7         Capital Adequacy.  If any present or future law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental
authority with appropriate jurisdiction affects the amount of capital required
or expected to be maintained by banks or bank holding companies and any Lender
or the Agent determines that the amount of capital required to be maintained by
it is increased by or based upon the existence of the Loans made or deemed to
be made pursuant hereto, then such Lender or the Agent may notify the Borrower
of such fact, and the Borrower shall pay to such Lender or the Agent from time
to time on demand, as an additional fee payable hereunder, such amount as such
Lender or the Agent shall determine in good faith and certify in a notice to
the Borrower to be an amount that will adequately compensate such Lender or the
Agent in light of these circumstances for its increased costs of maintaining
such capital. Each Lender and the Agent shall allocate such cost increases
among its customers in good faith and on an equitable basis.


 


§4.8         Certificate.  A certificate setting forth any additional
amounts payable pursuant to §§4.6 or 4.7 and a brief explanation of such
amounts which are due, submitted by any Lender or the Agent to the Borrower,
shall be prima facie evidence that such amounts are due and owing.


 


§4.9         Breakage Costs.  Borrower shall pay all Breakage Costs
incurred from time to time by any Lender upon demand within fifteen (15) days
from receipt of written notice from Agent, or such earlier date as may be
required by this Agreement.


 


§4.10       Default Interest and Late Charges.  During any period when an Event of Default
has occurred and is continuing, or after the Maturity Date or after judgment
has been rendered on any Note, Borrower’s right to select LIBOR Loans shall
cease and the unpaid principal of all


 


23

















 


Loans shall, at the
option of each Lender bear interest at a rate which is four (4) percentage
points per annum greater than that which would otherwise be applicable to Prime
Rate Loans. If the entire amount of any required principal and/or interest is
not paid in full within ten (10) days after the same is due, Borrower shall pay
to the Agent a late fee equal to five percent (5%) of the required payment.


 


§4.11       Inability to Determine LIBOR Rate.  In the event, prior to the commencement of
any Interest Period relating to any LIBOR Loan, the Agent shall reasonably
determine that adequate and reasonable methods do not exist for ascertaining
the LIBOR Rate that would otherwise determine the rate of interest to be
applicable to any LIBOR Loan during any Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower) to the Borrower. In such event (a) any Loan Request or
Conversion Request with respect to LIBOR Loans shall be automatically withdrawn
and shall be deemed a request for Prime Rate Loans, (b) each LIBOR Loan will
automatically, on the last day of the then current Interest Period thereof,
become a Prime Rate Loan, and (c) the obligations of the Lenders to make LIBOR
Loans shall be suspended until the Agent reasonably determines that the
circumstances giving rise to such suspension no longer exist, whereupon the
Agent shall so notify the Borrower.


 


§4.12       Illegality.  Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Loans, such Lender shall forthwith give notice of such
circumstances to the Borrower and thereupon (a) the Commitment of such Lender
to make LIBOR Loans or convert Loans of another Type to LIBOR Loans shall
forthwith be suspended and (b) the LIBOR Loans then outstanding shall be
converted automatically to Prime Rate Loans on the last day of each Interest
Period applicable to such LIBOR Loans or within such earlier period as may be
required by law. The Borrower hereby agrees promptly to pay to the Agent for
the account of such Lender, upon demand, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this §4.12, including any interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Loans hereunder. If, at any time, the rate of interest,
together with all amounts which constitute interest and which are reserved,
charged or taken by the Lenders as compensation for fees, services or expenses
incidental to the making, negotiating or collection of the Loans or the other
Obligations, shall be deemed by any competent court of law, governmental agency
or tribunal to exceed the maximum rate of interest permitted to be charged by
any Lender to Borrower under applicable law, then, during such time as such rate
of interest would be deemed excessive, that portion of each sum paid
attributable to that portion of such interest rate that exceeds the maximum
rate of interest so permitted shall be deemed a voluntary prepayment of
principal without penalty (including, without limitation, prepayment fees
required pursuant to §3.3(a) hereof).  As
used herein, the term “applicable law” shall mean the law in effect as of the
date hereof, provided, however, that in the event there is a change in the law
which results in a higher permissible rate of interest, then this Agreement and
the Notes shall be governed by such new law as of its effective date.


 


§4.13       Replacement of Lenders.  If any of the Lenders shall make a notice or
demand upon the Borrower pursuant to §4.6, §4.7, or §4.12 based on
circumstances or laws which are not generally applicable to the Lenders
organized under the laws of the United States or any State 


 


24

















 


thereof, the Borrower shall have the right to replace such Lender with
an Eligible Assignee selected by the Borrower and approved by the Agent.  In such event the assignment shall take place
on a date set by the Agent at which time the assigning Lender and the Eligible
Assignee shall enter into an Assignment and Acceptance as contemplated by §18.1
(and clause (d) thereof shall not be applicable) and the assigning Lender shall
receive from the Eligible Assignee a sum equal to the outstanding principal
amount of the Loans owed to the assigning Lender together with accrued interest
thereon plus all other amounts then due to the assigning Lender hereunder.


 


§4.14       Limitation on Interest.  Notwithstanding anything in this Agreement to
the contrary, all agreements between the Borrower and the Lenders and the
Agent, whether now existing or hereafter arising and whether written or oral,
are hereby limited so that in no contingency, whether by reason of acceleration
of the maturity of any of the Obligations or otherwise, shall the interest
contracted for, charged or received by the Lenders exceed the maximum amount
permissible under applicable law.  If,
from any circumstance whatsoever, interest would otherwise by payable to the
Lenders in excess of the maximum lawful amount, the interest payable to the
Lenders shall be reduced to the maximum amount permitted under applicable law;
and if from any circumstance the Lenders shall ever receive anything of value
deemed interest by applicable law in excess of the maximum lawful amount, an
amount equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. 
All interest paid or agreed to be paid to the Lenders shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law.  This
section shall control all agreements between the Borrower and the Lenders and
the Agent.


 


§5.          COLLATERAL SECURITY;
NO LIMITATION ON RECOURSE.


 


§5.1         Collateral Security.  The Obligations shall be secured by
(i) a perfected first priority lien and security interest to be held by
the Agent (subject only to Permitted Liens) in the Mortgaged Property, pursuant
to the terms of the Security Documents, (ii) a perfected first priority
lien and security interest to be held by the Agent in the Leases and rents
pursuant to the Assignment of Leases and Rents, and (iii) a perfected
first priority lien and security interest to be held by the Agent in the
Reserve Account.


 


§5.2         No Limitation on Recourse.  The Obligations are full recourse obligations
of the Borrower and all of its Real Estate Assets and other properties and
assets shall be available for the indefeasible payment in full in cash and
performance of the Obligations.


 


§5.3         Release of Mortgaged Property.  The Agent shall not be required to release
the Mortgaged Property from the lien of the Security Documents until payment in
full of all Obligations.  Upon the
release of the Mortgaged Property, the obligations of the Lenders to make Loans
to Borrower (pursuant to §2 or §33.3) shall terminate.


 


§5.4         Reserve Account.  The Borrower has caused Mortgagor to
establish the Reserve Account at KeyBank pursuant to the Collateral Account
Agreement.  Borrower acknowledges 


 


25

















 


that for so long as KeyBank is the Agent hereunder, the Agent shall be
deemed to be in control of the Reserve Account as required for perfection of
said security interest under Article 9 of the Uniform Commercial Code.  In the event that the Agent is no longer
KeyBank, Borrower, Mortgagor, KeyBank and the successor Agent shall enter into
a control agreement for purposes of maintaining such perfection.  As of January 13, 2006, the balance of the
Reserve Account is $1,255,410.36.  For so
long as the property commonly known as Greenhill Park shall be a Mortgaged
Property, then to the extent that the Mortgagor of Greenhill Park executes
Leases of portions of such Mortgaged Property, Borrower may request periodic
disbursements from the Reserve Account in amounts needed to pay leasing
commissions and costs of tenant improvements constructed pursuant to the terms
of such Leases, and Agent shall make such disbursements subject to receipt of
lien waivers and other documents reasonably requested by the Agent and in
accordance with the terms of the Collateral Account Agreement.  If an Event of Default has occurred and is
continuing, the Agent may, in its sole discretion, apply any or all funds in
the Reserve Account in the same manner as Collateral proceeds under §12.4.


 


§6.          REPRESENTATIONS
AND WARRANTIES.


 


The Borrower represents and warrants to the
Agent and each of the Lenders as of the Closing Date and as of the date of each
Loan hereunder as follows.


 


§6.1         Authority; Etc.


 


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


 


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


 


26

















 


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


 


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


 


§6.3         Title to Properties; Leases.


 


(a)           The Borrower or a Related Company
holds good and clear record and marketable (or indefeasible, with respect to
Real Estate located in Texas) fee simple or leasehold title, as applicable, to
the Real Estate, subject to no rights of others, including any mortgages,
conditional sales agreements, title retention agreements, liens or encumbrances
except for the Permitted Liens.


 


(b)           Except as indicated on Schedule
6.3 hereto, the Borrower owns all of the properties reflected in the
balance sheet of the Borrower as of the Balance Sheet Date or acquired since
that date (except properties sold or otherwise disposed of in the ordinary
course of business since that date), subject to no rights of others, including
any mortgages, leases, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Liens.


 


§6.4         Financial Statements.  The following financial statements have been
furnished to each of the Lenders.


 


(a)           A balance sheet of the Borrower as of
the Balance Sheet Date, and a statement of income, statement of changes in
shareholders’ equity and statement of cash flows for the fiscal year then
ended, accompanied by an auditor’s report prepared without qualification. Such
balance sheet and statements of income, of changes in shareholders’ equity and
of cash flows have been prepared in accordance with Generally Accepted
Accounting Principles and fairly present the financial condition of the
Borrower in all material respects as of the close of business on the date
thereof and the results of operations, changes in shareholders’ equity and cash
flows for the fiscal year then ended. There are no contingent liabilities of
the Borrower as of such date involving material amounts, known to the officers
of the Borrower not disclosed in said balance sheet and the related notes thereto.


 


(b)           A balance sheet and a statement of
income, statement of changes in shareholders, equity and statement of cash
flows of the Borrower for each of the fiscal quarters of the Borrower ended
since the Balance Sheet Date certified by Borrower’s chief financial




27

















 


officer to have been prepared in accordance with
Generally Accepted Accounting Principles consistent with those used in the
preparation of the annual audited statements delivered pursuant to paragraph
(a) above and to fairly present the financial condition of the Borrower in all
material respects as of the close of business on the dates thereof and the
results of operations, of changes in shareholders’ equity and of cash flows for
the fiscal quarters then ended (subject to year-end adjustments). There are no
contingent liabilities of the Borrower as of such dates involving material
amounts, known to the officers of the Borrower, not disclosed in such balance
sheets and the related notes thereto.


 


§6.5         No Material Changes.  Since the Balance Sheet Date, there has
occurred no material adverse change in the financial condition or assets or
business of the Borrower as shown on or reflected in the balance sheet of the
Borrower as of the Balance Sheet Date, or the statement of income for the
fiscal year then ended, other than changes in the ordinary course of business
that have not had a Material Adverse Effect.


 


§6.6         Franchises, Patents, Copyrights, Etc.  The Borrower possesses (either directly or
through the Related Companies) all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others, including all Permits.


 


§6.7         Litigation.  Except as listed and described on Schedule
6.7 hereto, there are no actions, suits, proceedings or investigations of
any kind pending or, to Borrower’s knowledge, threatened against the Borrower or
any of the Related Companies before any court, tribunal or administrative
agency or board that, if adversely determined, might, either in any case or in
the aggregate, have a Material Adverse Effect or materially impair the right of
the Borrower or any of the Related Companies to carry on business substantially
as now conducted by it, or result in any material liability not adequately
covered by insurance, or for which adequate reserves are not maintained on the
balance sheet of the Borrower.


 


§6.8         No Materially Adverse Contracts,
Etc.  The Borrower is not subject to
any charter, trust or other legal restriction, or any judgment, decree, order,
rule or regulation that has or is expected in the future to have a Material
Adverse Effect. The Borrower is not a party to any contract or agreement that
has or is expected, in the judgment of the Borrower’s officers, to have a
Material Adverse Effect. None of the Related Companies is subject to any
charter, trust or other legal restriction, or any judgment, decree, order, rule
or regulation that has or is expected in the future, in the judgment of the
Borrower’s officers, to have a Material Adverse Effect. None of the Related
Companies is a party to any contract or agreement that has or is expected, in
the judgment of the Borrower’s officers, to have any Material Adverse Effect.


 


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


 


28

















 


§6.10       Tax Status.  The Borrower (a) has made or filed all
federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject, (b) has paid all taxes and
other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith and by appropriate proceedings, and (c) has set aside on its books
reserves reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations
apply.  There are no delinquent taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Borrower know of no basis for any such
claim.


 


§6.11       Event of Default.  No Default or Event of Default has occurred
and is continuing.


 


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


 


§6.13       Absence of Financing Statements, Etc.  There is no financing statement, security
agreement, chattel mortgage, real estate mortgage, equipment lease, financing
lease, option, encumbrance or other document existing, filed or recorded with
any filing records, registry, or other public office, that purports to cover,
affect or give notice of any present or possible future lien or encumbrance on,
or security interest in, the Collateral or any property of the Borrower, except
those in favor of the Agent or Permitted Liens.


 


§6.14       Setoff, Etc.  The Collateral and the Agent’s rights with
respect to the Collateral are not subject to any setoff, claims, withholdings
or other defenses.


 


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


 


§6.16       Benefit Plans; Multiemployer Plans;
Guaranteed Pension Plans.  As of the
date hereof as to any Multiemployer Plan or Guaranteed Pension Plan, neither
the Borrower nor any ERISA Affiliate maintains or contributes to any
Multiemployer Plan or Guaranteed Pension Plan. To the extent that Borrower or
any ERISA Affiliate hereafter maintains or contributes to any Employee Benefit
Plan or Guaranteed Pension Plan, it shall at all times do so in compliance with
§7.20 hereof.


 


29

















 


§6.17       Regulations U and X.  No portion of any Loan shall be used, in
whole or in part, for the purpose of purchasing or carrying any “margin
security” or “margin stock” as such terms are used in Regulations U and X of
the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and
224.  The Borrower is not engaged, and
the Borrower will not engage, principally or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
any “margin security” or “margin stock” as such terms are used in Regulations
T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R.
Parts 220, 221 and 224.


 


§6.18       Environmental Compliance.  To the best of Borrower’s knowledge, Borrower
makes the following representations and warranties:


 


(a)           Except as may be set forth on Schedule
6.18 attached hereto, none of the Borrower, any of the Related Companies or
any operator of the Real Estate or any portion thereof, or any operations
thereon is in violation, or alleged material violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to environmental
matters (hereinafter collectively referred to as the “Environmental Laws”),
including without limitation, those arising under the Resource Conservation and
Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended (“CERCLA”), the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the environment,
including, without limitation, the environmental statutes, regulations, orders
and decrees of the States in which any of the Real Estate may be located, which
violation involves the Real Estate (provided that from and after the Revolving
Credit Reinstatement Date, the immediately preceding reference to Real Estate
shall instead be to the Mortgaged Property) or would have a Material Adverse
Effect.


 


(b)           Except as set forth on Schedule
6.18 attached hereto, none of the Borrower or the Related Companies has
received written notice from any third party including, without limitation any
federal, state or local governmental authority, (i) that it has been identified
by the United States Environmental Protection Agency (“EPA”) as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B (1986) ; (ii) that any hazardous
waste, as defined by 42 U.S.C. §9601(5), any hazardous substances as defined by
42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C.
§9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws (“Hazardous
Materials”) which it has generated, transported or disposed of have been found
at any site at which a federal, state or local agency or other third party has
conducted or has ordered that the Borrower or any of the Related Companies
conduct a remedial investigation, removal or other response action pursuant to
any Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any third
party’s incurrence of costs, expenses, losses or damages of any kind whatsoever
in connection with the release of Hazardous Materials (provided that from and
after the Revolving Credit Reinstatement Date, the representations in clauses
(i), (ii) and (iii) shall relate to (A) Borrower and Mortgagor, and (B) any
other matters described therein that have had or could reasonably be expected
to have a Material Adverse Effect).


 


30

















 


(c)           Except as set forth on Schedule
6.18 attached hereto, (i) no portion of the Real Estate has been used for
the handling, processing, storage or disposal of Hazardous Materials except in
material compliance with applicable Environmental Laws; and except as set forth
on Schedule 6.18, no underground tank or other underground storage
receptacle for Hazardous Materials is located on any portion of the Real
Estate; (ii) in the course of any activities conducted by the Borrower, any of
the Related Companies or the operators of the Real Estate, no Hazardous
Materials have been generated or are being used on the Real Estate except in
material compliance with applicable Environmental Laws; (iii) there has been no
present, or to the best of Borrower’s knowledge past, releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous
Materials on, upon, into or from the Real Estate; (iv) to the best of Borrower’s
knowledge, there have been no Releases on, upon, from or into any real property
in the vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a material
adverse effect on the value of, such Real Estate; and (v) to the best of
Borrower’s knowledge, any Hazardous Materials that have been generated on any
of the Real Estate have been transported off-site only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities have been and
are, to the best of the Borrower’s knowledge, operating in material compliance
with such permits and applicable Environmental Laws (provided that from and
after the Revolving Credit Reinstatement Date, the foregoing representations
shall be limited to (A) the Borrower, Mortgagor, and the Mortgaged Property,
and (B) any other matters described therein that have had or could reasonably
be expected to have a Material Adverse Effect). 
Notwithstanding that any representation contained herein may be limited
to the knowledge of the Borrower, any such limitation shall not affect the
covenants specified in §7.10 or elsewhere in this Agreement.


 


§6.19       Subsidiaries and Affiliates.  The Borrower has no Subsidiaries except for
the Related Companies listed on Schedule 1.3. The Borrower is not a
partner in any partnership and is not a member of any limited liability
company, other than the Unconsolidated Entities listed on Schedule 1.3.


 


§6.20       Leases.  Upon request from Agent the Borrower will
deliver to the Agent a rent roll for each parcel of Real Estate which shall
accurately and completely sets forth all relevant information with respect to
the leases, the rents payable by tenants, and a description of any tenant
improvements or work to be done, furnished or paid for by the landlord, or
credited or allowed to a tenant.


 


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


 


§6.22       Property.  All of the Borrower’s, the Related Companies’
and the Controlled Unconsolidated Entities’ properties are in good repair and
condition, subject to ordinary wear and tear. 
The Borrower has completed or caused to be completed an appropriate
investigation of the environmental condition of each such property as of the
later of the date of the Borrower’s, the


 


31

















 


Related Companies’ or the Controlled Unconsolidated
Entities’ purchase thereof or the date upon which such property was last
security for Indebtedness of such Person, including preparation of a “Phase I”
report and, if appropriate, a “Phase II” report, in each case prepared by a
recognized environmental engineer in accordance with customary standards which
discloses that such property is not in violation of the representations and
covenants set forth in this Agreement, unless such violation has been disclosed
in writing to the Agent and remediation actions satisfactory to Agent are being
taken.  There are no unpaid or outstanding
real estate or other taxes or assessments on or against any property of the
Borrower, the Related Companies or the Controlled Unconsolidated Entities which
are payable by such Person (except only real estate or other taxes or
assessments, that are not yet due and payable). 
Except as set forth in Schedule 6.22 hereto, there are no pending
eminent domain proceedings against any property of the Borrower, the Related
Companies or the Controlled Unconsolidated Entities or any part thereof, and,
to the knowledge of the Borrower, no such proceedings are presently threatened
or contemplated by any taking authority which may individually or in the
aggregate have any materially adverse effect on the business or financial
condition of the Borrower.  To Borrower’s
knowledge after due inquiry and investigation none of the property of Borrower,
the Related Companies or the Controlled Unconsolidated Entities is now damaged
or injured as a result of any fire, explosion, accident, flood or other
casualty in any manner which individually or in the aggregate would have any
materially adverse effect on the business or financial condition of the
Borrower.


 


§6.23       OFAC.  The Borrower is not (and will not be) a
person with whom any Lender is restricted from doing business under OFAC
(including, those Persons named on OFAC’s Specially Designated and Blocked
Persons list) or under any statute, executive order (including the September
24, 2001 Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action and is not and shall not engage in any dealings or
transactions or otherwise be associated with such persons.  In addition, Borrower hereby agrees to
provide to the Lenders any additional information that a Lender deems necessary
from time to time in order to ensure compliance with all applicable laws
concerning money laundering and similar activities.


 


§6.24       Financial Plaza Contract.  Borrower has delivered to Agent a true and
correct copy of the Financial Plaza Contract. 
The Financial Plaza Contract is in full force and effect.


 


§7.          AFFIRMATIVE
COVENANTS OF THE BORROWER.


 


Borrower covenants and agrees as follows, so
long as any Loan or Note is outstanding or the Lenders have any obligations to
make Loans:


 


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


 


§7.2         Maintenance of Office.  The Borrower will maintain its chief
executive office at 1780 S. Bellaire Street, Suite 100, Denver, CO 80222 or at
such other place in the United States of America as the Borrower shall
designate upon written notice to the Agent to be delivered


 


32

















 


within fifteen
(15) days of such change, where notices, presentations and demands to or upon
the Borrower in respect of the Loan Documents may be given or made.


 


§7.3         Records and Accounts.  The Borrower will (a) keep true and accurate
(in all material respects) records and books of account in which full, true and
correct entries (in all material respects) will be made in accordance with
Generally Accepted Accounting Principles and (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation and amortization
of its properties, contingencies, and other reserves.


 


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


 


(a)           as soon as practicable, but in any
event not later than ninety (90) days after the end of each fiscal year of the
Borrower, the audited balance sheet of the Borrower at the end of such year,
and the related audited statement of income, statement of changes in
shareholders, equity and statement of cash flows for such year, each setting
forth in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with Generally
Accepted Accounting Principles, and accompanied by an auditor’s report prepared
without qualification by or by an independent certified public accountant
reasonably acceptable to the Agent;


 


(b)           as soon as practicable, but in any
event not later than forty-five (45) days after the end of each of the first
three (3) fiscal quarters of the Borrower, copies of the unaudited balance
sheets of the Borrower as at the end of such quarter, and the related unaudited
statement of income, statement of changes in shareholders’ equity and statement
of cash flows for the portion of the Borrower’s fiscal year then elapsed, all
in reasonable detail and prepared in accordance with Generally Accepted
Accounting Principles, together with a certification by the principal financial
or accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Borrower on
the date thereof (subject to year-end adjustments);


 


(c)           as soon as practicable, but in any
event no later than forty-five (45) days after the end of each fiscal quarter
of the Borrower, the Borrower will provide the Agent with, for each parcel of
Real Estate: (i) a rent roll dated as of the end of such fiscal quarter in form
reasonably satisfactory to the Agent, (ii) a statement of the Net Operating
Income for each parcel of Real Estate for such fiscal quarter and year to date
and (iii) after the last quarter of each year, a detailed statement of all
income and expenses for each parcel of Real Estate for such year;


 


(d)           simultaneously with the delivery of
the financial statements referred to in subsections (a) and (b) above, a
Compliance Certificate;


 


(e)           as soon as practicable, but in any
event not later than ninety (90) days after the end of each fiscal year of the
Borrower, and to the extent not previously provided pursuant to this §7.4,
copies of the Form 10-K statement filed with the Securities and Exchange
Commission (“SEC”) for such fiscal year, and as soon as practicable, but in any
event not later than forty-five (45) days after the end of each fiscal quarter,
copies of the Form 10-Q statement filed with the SEC for such fiscal quarter,
provided that in either case if the SEC has granted an extension for the


 


33

















 


filing of such statements, Borrower shall deliver such
statements to the Agent simultaneously with the filing thereof with the SEC;


 


(f)            promptly following the filing or
mailing thereof, copies of all other material of a financial nature filed with
the SEC, and each Lender will be included on Borrower’s mailing list so that it
will receive copies of all press releases issued by the Borrower;


 


(g)           as soon as practicable, but in any
event not later than sixty (60) days prior to the beginning of each fiscal year
of the Borrower a cash flow budget for the Borrower and a property budget for
each parcel of Real Estate for such fiscal year; and


 


(h)           from time to time such other
financial data and information as the Agent may reasonably request;


 


§7.5         Notices.


 


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


 


(b)           Environmental Events.  The Borrower will promptly notify the Agent
in writing of any of the following events: (i) upon Borrower’s obtaining
knowledge of any violation of any Environmental Law regarding any Real Estate
or Borrower’s operations which violation could have a Material Adverse Effect;
(ii) upon Borrower’s obtaining knowledge of any potential or known Release, or
threat of Release, of any Hazardous Substance at, from, or into any Real Estate
which it reports in writing or is reportable by it in writing to any
governmental authority and which is material in amount or nature or which could
materially affect the value of such Real Estate; (iii) upon Borrower’s receipt
of any notice of violation of any Environmental Laws or of any Release or
threatened Release of Hazardous Substances, including a notice or claim of
liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including
notice of any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) Borrower’s or any Person’s operation of any Real Estate to
the extent it may result in a Material Adverse Effect, (3) contamination on,
from or into any Real Estate to the extent it may result in a Material Adverse
Effect, or (C) investigation or remediation of off-site locations at which
Borrower or any of its predecessors are alleged to have directly or indirectly
disposed of Hazardous Substances; or (iv) upon Borrower’s obtaining knowledge
that any expense or loss has been incurred by such governmental authority in
connection with the assessment, containment, removal or remediation of any
Hazardous Substances with respect to which Borrower or any of the Related
Companies may be liable or for which a lien may be imposed on any Real Estate
to the extent such liability may result in a Material Adverse Effect.


 


34

















 


(c)           Notification of Claims.  The Borrower will, immediately upon becoming
aware thereof, notify the Agent in writing of any setoff, claims (including,
with respect to any of the Real Estate, environmental claims), withholdings or
other defenses which could have a Material Adverse Effect.


 


(d)           Notice of Litigation and Judgments.  The Borrower will give notice to the Agent in
writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings
affecting any of the Real Estate or affecting the Borrower or any of the
Related Companies or to which the Borrower or any of the Related Companies is
or is to become a party involving an uninsured claim (or as to which the
insurer reserves rights) against the Borrower or any of the Related Companies
that at the time of giving of notice could reasonably be expected to have a
Material Adverse Effect, and stating the nature and status of such litigation
or proceedings. The Borrower will give notice to the Agent, in writing, in form
and detail reasonably satisfactory to the Agent, within ten (10) days of any
judgment not covered by insurance, final or otherwise, against the Borrower or
any Related Company in an amount in excess of $50,000.


 


(e)           Termination of Financial Plaza
Contract.  Borrower shall promptly
notify Agent in the event that the Financial Plaza Contract is terminated.


 


§7.6         Existence; Maintenance of REIT
Status; Maintenance of Properties. 
The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland
corporation and its status as a self administered real estate investment trust
under the Code. The Borrower will do or cause to be done all things necessary
to preserve and keep in full force and effect the existence of Mortgagor and
each other Related Company.  Borrower
will comply in all material respects with all applicable rules and regulations
of the SEC relating to its publicly held stock. Borrower will continue to have
its stock listed on one of the major stock exchanges in the United States, and
will comply in all material respects with all applicable rules of the stock
exchange where the stock is so listed. The Borrower will do or cause to be done
all things necessary to preserve and keep in full force all of its rights and
franchises which in the judgment of the Borrower may be necessary to properly
and advantageously conduct the businesses being conducted by it, or by any of
the Related Companies. The Borrower will continue to engage primarily in the
businesses now conducted by it and in related businesses.


 


§7.7         Insurance.  Borrower will maintain insurance on the
Mortgaged Property as required by the Security Deed.  With respect to the other properties and
businesses of Borrower and the Related Companies, the Borrower will maintain or
cause to be maintained insurance with financially sound and reputable insurers
against such casualties and contingencies as shall be in accordance with the
general practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms and for
such periods as may be reasonable and prudent.


 


§7.8         Taxes.  The Borrower will pay real estate taxes,
other taxes, assessments and other governmental charges against the Real Estate
before the same become delinquent, and will duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it and its other


 


35

















 


properties, sales and activities, or any part thereof,
or upon the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a lien or charge upon
any of its properties; provided that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower shall
have set aside on its books adequate reserves with respect thereto; and
provided further that the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor. Promptly after
payment of real estate taxes, other taxes, assessments and other governmental
charges against the Real Estate, Borrower will provide evidence of such payments
to the Agent, in the form of receipted tax bills or other form reasonably
acceptable to the Agent.


 


§7.9         Inspection of Properties and Books.  The Borrower shall permit the Lenders,
through the Agent’s or any Lender’s other designated representatives, at the
Borrower’s expense to visit and inspect any of the Real Estate or any of
Borrower’s offices, to examine the books of account of the Borrower and the
Related Companies (and to make copies thereof and extracts therefrom) and to
discuss the affairs, finances and accounts of the Borrower with, and to be
advised as to the same by, its officers, all at such reasonable times and
intervals as the Agent or any Lender may reasonably request.


 


§7.10       Compliance with Laws, Contracts,
Licenses, and Permits.  The Borrower
will comply, and will cause all Related Companies to comply, with (a) all
applicable laws and regulations now or hereafter in effect wherever its
business is conducted, including all Environmental Laws, (b) the provisions of
all applicable partnership agreements, charter documents and by-laws, (c) all
agreements and instruments to which it is a party or by which it or any of its
Real Estate Assets may be bound including any Leases, and (d) all applicable
decrees, orders, and judgments. If at any time any Permit from any governmental
Person shall become necessary or required in order that the Borrower may
fulfill or be in compliance with any of its obligations hereunder or under any
of the Loan Documents, the Borrower will promptly take or cause to be taken all
reasonable steps within the power of the Borrower to obtain such authorization,
consent, approval, permit or license and furnish the Agent and the Lenders with
evidence thereof.


 


§7.11       Use of Proceeds.  Subject to the provisions of §2.5 hereof, the
proceeds of the Loans shall be used by the Borrower for making Investments
permitted by §8.3, and for working capital and other purposes consistent with
the covenants contained herein.


 


§7.12       Reserved.


 


§7.13       [Intentionally Omitted.]


 


§7.14       Interest Rate Protection.  Borrower shall maintain in effect interest
rate caps, swaps or other interest hedging contracts with counterparties and in
form and substance reasonably satisfactory to the Agent covering such portion
of Borrower’s variable rate debt as may be required by the Agent.


 


36

















 


§7.15       Further Assurance.  The Borrower will (and will cause Mortgagor
to) cooperate with the Agent and the Lenders and execute such further
instruments and documents and perform such further acts as the Agent and the
Lenders shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Agreement and the other Loan Documents and
the granting and perfecting of all liens in the Collateral for the benefit of
the Agent as agent for the Lenders.


 


§7.16       Reserved.


 


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


 


§7.18       Response Actions.  The Borrower covenants and agrees that if any
Release or disposal of Hazardous Substances shall occur or shall have occurred
on any Real Estate, the Borrower will cause the prompt containment and removal
of such Hazardous Substances and remediation of such Real Estate as necessary
to comply with all Environmental Laws or to preserve the value of such Real
Estate.


 


§7.19       Environmental Assessments.  If the Agent in its good faith judgment,
after discussion with the Borrower, has reason to believe that the
environmental condition of any Real Estate has deteriorated, after reasonable
notice by the Agent, whether or not a Default or an Event of Default shall have
occurred, the Agent may, from time to time, for the purpose of assessing and
ensuring the value of such Real Estate, obtain one or more environmental
assessments or audits of such Real Estate prepared by an independent engineer
or other qualified consultant or expert approved by the Agent to evaluate or
confirm (i) whether any Hazardous Substances are present in the soil or water
at such Real Estate and (ii) whether the use and operation of such Real Estate
complies with all Environmental Laws. Environmental assessments may include
without limitation detailed visual inspections of such Real Estate including,
without limitation, any and all storage areas, storage tanks, drains, dry wells
and leaching areas, and the taking of soil samples, surface water samples and
ground water samples, as well as such other investigations or analyses as the
Agent deems appropriate. All such environmental assessments shall be at the
sole cost and expense of the Borrower.


 


37

















 


§7.20       Employee Benefit Plans.


 


(a)           Representation.  The Borrower and its ERISA Affiliates do not
currently maintain or contribute to any Guaranteed Pension Plan or
Multiemployer Plan.


 


(b)           Notice.  The Borrower will obtain the consent of the
Agent, which consent shall not be unreasonably withheld, conditioned or
delayed, prior to the establishment of any Employee Benefit Plan or Guaranteed
Pension Plan by the Borrower or any ERISA Affiliate.


 


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


 


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


 


(e)           Multiemployer Plans.  Without the consent of the Agent, the
Borrower will not enter into, maintain or contribute to, any multiemployer
Plan.


 


(f)            Unfunded or Underfunded
Liabilities.  The Borrower will not,
at any time, have accruing unfunded or underfunded liabilities with respect to
any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or
permit any condition to exist under any Multiemployer Plan that would create a
withdrawal liability.


 


§7.21       More Restrictive Agreements.  Without limiting the terms of §8.1, should
the Borrower enter into or modify any agreements or documents pertaining to any
existing or future Indebtedness, which agreements or documents include
covenants (whether affirmative or negative), warranties, representations,
defaults or events of default (or any other provision which may have the same
practical effect as any of the foregoing) which are individually or in the
aggregate more restrictive against the Borrower than those set forth herein or
in any of the other Loan Documents, the Borrower shall promptly notify the
Agent and, if requested by Majority Lenders, the Borrower, the Agent and the
Majority Lenders shall promptly amend this Agreement and the other Loan
Documents to include some or all or such more restrictive provisions as
determined by the Majority Lenders in their sole discretion.  Notwithstanding the foregoing, this §7.21
shall not apply to covenants in agreements or documents relating to
Indebtedness that relate only to specific Real Estate that is collateral for
such Indebtedness.


 


38

















 


 


§8.          CERTAIN
NEGATIVE COVENANTS OF THE BORROWER.


 


The Borrower covenants and agrees as follows,
so long as any Loan or Note is outstanding or the Lenders have any obligation
to make any Loans:


 


§8.1         Restrictions on Indebtedness.  The Borrower will not, and the Borrower will
not permit any of the Related Companies or any Controlled Unconsolidated Entity
to create, incur, assume, guarantee or become or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:


 


(a)           Indebtedness arising under any of the
Loan Documents;


 


(b)           current liabilities of the Borrower
incurred in the ordinary course of business but not incurred through (i) the
borrowing of money, or (ii) the obtaining of credit except for credit on an
open account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;


 


(c)           Indebtedness in respect of taxes,
assessments, governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be required
to be made in accordance with the provisions of §7.8;


 


(d)           Indebtedness in respect of judgments
or awards that have been in force for less than the applicable period for
taking an appeal so long as execution is not levied thereunder or in respect of
which the Borrower shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review;


 


(e)           endorsements for collection, deposit
or negotiation and warranties of products or services, in each case incurred in
the ordinary course of business; and


 


(f)            Indebtedness listed on Schedule 8.1
hereto and any refinancing of such Indebtedness; provided that any Indebtedness
refinancing Indebtedness listed on Schedule 8.1 hereto (i) shall not be
secured by any property not collateral for the Indebtedness being refinanced,
and (ii) such refinancing indebtedness shall not provide greater recourse to
Borrower than the Indebtedness being refinanced (except with respect to any
variations in customary non-recourse carve-outs).


 


§8.2         Restrictions on Liens, Etc.  The Borrower will not, and the Borrower will
not permit any Related Company or Controlled Unconsolidated Subsidiary to, (a)
create or incur or agree not to create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its assets or
properties of any character, or upon the rents, income or profits therefrom;
(b) suffer to exist for a period of more than thirty (30) days after the same
shall have been incurred any Indebtedness (not permitted by §8.1(c)) or claim
or demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or (c) sell, assign, pledge or otherwise transfer any rents, issues,
profits, accounts, contract rights, general intangibles, chattel paper or
instruments relating to any of its assets or properties of any character other
than in connection with the sale of the Real Estate to


 


39

















 


which they pertain as permitted hereunder (collectively,
“Liens”); provided that the Borrower may create or incur or suffer to be
created or incurred or to exist:


 


(i)            liens to secure taxes, assessments
and other governmental charges in respect of obligations not overdue, the
Indebtedness with respect to which is permitted by §8.1(c);


 


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


 


(iii)          liens in respect of judgments or awards,
the Indebtedness with respect to which is permitted by §8.1(d);


 


(iv)          liens of carriers, warehousemen,
mechanics and materialmen, and other like liens in existence less than 60 days
from the date of creation thereof in respect of obligations not overdue, the
Indebtedness with respect to which is permitted by §8.1(c);


 


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


 


(vi)          liens on Real Estate to secure the
Indebtedness permitted by §8.1(f) which are reflected on Schedule 8.1
as being secured by liens and any permitted refinancings thereof;


 


(vii)         any Leases permitted by this Agreement
or otherwise approved by the Agent;


 


(viii)        presently outstanding liens and other
encumbrances on the Mortgaged Property as permitted by the Security Deed; and


 


(ix)           liens in favor of the Agent and/or
any of the Lenders granted pursuant to the Security Documents.


 


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


 


(a)           marketable direct or guaranteed
obligations of the United States of America that mature within one (1) year
from the date of purchase by the Borrower;


 


(b)           demand deposits, certificates of
deposit, bankers acceptances and time deposits of United States banks having
total assets in excess of $1,000,000,000;


 


40

















 


(c)           securities commonly known as “commercial
paper” issued by a corporation organized and existing under the laws of the
United States of America or any state thereof that at the time of purchase have
been rated and the ratings for which are not less than “P 1” if rated by Moody’s
Investors Services, Inc., and not less than “A 1” if rated by Standard and Poor’s;


 


(d)           Investments in office properties (but
not including office properties that are under construction) consistent with
Borrower’s business plan submitted to the Agent prior to the date hereof and
Investments in the following categories so long as the aggregate amount of each
of the following categories of Investments does not exceed the specified
percentage of Gross Asset Value set forth in the following table and so long as
the aggregate amount, without duplication, of all Investments described in such
categories does not exceed, at any time, fifteen percent (15%) of Gross Asset
Value:


 


	
  Category of Investment

  	
   

  	
  Maximum Percentage of Gross Asset Value

  	
   

  
	
  Real Estate
  Assets that are not office buildings or office parks

  	
   

  	
  5

  	
  %

  
	
  Unconsolidated Entities primarily engaged
  in either the business of ownership of real estate located in the United
  States

  	
   

  	
  10

  	
  %

  
	
  Undeveloped
  land

  	
   

  	
  5

  	
  %

  
	
  Mortgages
  and notes receivable

  	
   

  	
  5

  	
  %

  



 


§8.4         Merger, Consolidation, Acquisition
and Disposition of Properties.


 


(a)           The Borrower will not, and will not
permit any of the Related Companies or any Controlled Unconsolidated Entity to
become a party to any merger or consolidation, or agree to or effect any stock
acquisition, or enter into any partnership or joint venture other than
partnerships or joint ventures relating to Unconsolidated Entities to the
extent allowed by §8.3(d).


 


(b)           [Intentionally Omitted.]


 


(c)           Borrower will not, and will not
permit any of the Related Companies or any Controlled Unconsolidated Entity to
acquire or sell or otherwise dispose of Real Estate Assets pursuant to a single
transaction or a series of related transactions if the aggregate price or other
consideration exceeds $5,000,000 unless prior to such acquisition, sale or
transfer, the Borrower shall provide the Agent with a notice describing the
terms of such transaction and a Compliance Certificate with updated
calculations reflecting such transaction, and, if the aggregate price or other
consideration for an acquisition of Real Estate Assets exceeds $30,000,000,
unless prior to such acquisition occurring prior to the Revolving Credit
Reinstatement Date, the Borrower shall have obtained the consent of the Majority
Lenders.  For the purposes of this
§8.4(c), the Lenders approve of the plan of transfers set forth in the separate
plan delivered to Agent contemporaneously herewith, provided that such approval
shall not affect Borrower’s obligation pursuant to this §8.4(c) to provide a
Compliance Certificate with updated calculations prior to any such transfer.


 


41

















 


(d)           The Borrower shall not transfer any
assets to any of the Related Companies or any Unconsolidated Entity, and shall
not make any other material changes to the structure of its corporate
organization or the manner in which it operates its business, except with the
prior written consent of the Agent.


 


§8.5         Sale and Leaseback.  The Borrower will not enter into any
arrangement, directly or indirectly, whereby the Borrower shall sell or
transfer any property owned by it in order then or thereafter to lease such
property or lease other property that the Borrower intends to use for
substantially the same purpose as the property being sold or transferred. The
Borrower will not permit any of the Related Companies or any Controlled
Unconsolidated Entity to enter into any such arrangement.


 


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


 


§8.7         Distributions.  The Borrower shall not make any Distributions
without the written consent of Agent. 
Notwithstanding the foregoing, provided that (a) no Default or
Event of Default has occurred and is continuing and (b) the Financial
Plaza Contract is in full force and effect or the transaction contemplated
thereby has closed in accordance with its terms and resulted in a prepayment of
the Outstanding Obligations of not less than $25,000,000.00, then Borrower
shall be permitted to make a single Distribution to common shareholders in 2006
with respect to calendar year 2005 in an amount equal to the lesser of
(a) $1,200,000.00 and (b) the minimum amount necessary for the Borrower
to maintain its REIT status provided that the Borrower provides the Agent with
a letter from its accountants or attorneys setting forth the basis for
computation of the amount of such necessary Distributions.


 


§8.8         [Intentionally Omitted.]


 


§8.9         Related Companies.  The Borrower will not amend the articles of
incorporation or bylaws or other organizational documents of any of the Related
Companies other than as may be required by any lender in connection with the
incurrence of Indebtedness permitted under §8.1.  Prior to the Revolving Credit Reinstatement
Date, Borrower will not, directly or indirectly, make or permit to be made, by
voluntary or involuntary means, any sale, assignment, transfer, disposition,
mortgage, pledge, hypothecation or encumbrance of its interest in any Related
Company or Unconsolidated Entity or any dilution of its interest in any Related
Company or Unconsolidated Entity.  From
and after the Revolving Credit Reinstatement Date, Borrower will not, directly
or indirectly, make or permit to be made, by voluntary or involuntary means,
any mortgage, pledge, hypothecation or encumbrance of its interest in any
Related Company or Unconsolidated Entity or any dilution of its interest in
Mortgagor.


 


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§8.10       Equity Pledges.  Notwithstanding anything in this Agreement to
the contrary, Borrower will not, and the Borrower will not permit any Related
Company or Controlled Unconsolidated Subsidiary to, create or incur or suffer
to be created or incurred any Lien on any legal, equitable or beneficial
interest of Borrower in any Related Company or Controlled Unconsolidated Entity
if (a) all or any portion of the Indebtedness secured by such Lien is recourse
to Borrower, or (b) the Real Estate owned by such Related Company or
Controlled Unconsolidated Entity is Collateral.


 


§8.11       Employment Contract.  Borrower shall not modify or amend in any
material respect the Employment Contract, and shall cause the Employment
Contract at all times to remain in full force and effect.


 


§8.12       Sale of Other Assets.  Borrower shall not, and shall not permit any
of the Related Companies or any Controlled Unconsolidated Entity to, enter into
any contract for the sale or disposition of any asset, nor sell or otherwise
dispose of any asset if the gross sales price for such asset is less than the
sales price previously approved by Agent for such asset.


 


§9.          FINANCIAL
COVENANTS OF THE BORROWER.


 


The Borrower covenants and agrees as follows,
so long as any Loan or Note is outstanding or any Lender has any obligation to
make any Loan:


 


§9.1         Borrowing Base Value.  The Borrower will not at any time permit the
Outstanding Obligations to exceed the Borrowing Base Value of the Mortgaged
Property.  The covenant set forth in this
§9.1 shall not be effective prior to the Revolving Credit Reinstatement Date.


 


§9.2         Minimum Debt Service Coverage.  The Borrower will not permit the Outstanding
Obligations to exceed an amount such that: (a) the Collateral Cash Flow,
divided by (b) Pro Forma Debt Service Charges, would be less than 1.35,
calculated as of the end of each fiscal quarter.  The covenant set forth in this §9.2 shall not
be effective prior to the Revolving Credit Reinstatement Date.


 


§9.3         Total Liabilities to Gross Asset
Value.  The Borrower will not permit
Total Liabilities to exceed sixty-five percent (65%) of Gross Asset Value,
calculated as of the end of each fiscal quarter.


 


§9.4         Adjusted EBITDA to Interest Expense.  The Borrower will not permit the ratio of its
Adjusted EBITDA to Interest Expense to be less than 1.5 to 1.0 for any period
of two fiscal quarters annualized, calculated as of the end of each fiscal
quarter.  Notwithstanding the foregoing,
extraordinary gains and losses shall not be annualized for purposes of the
foregoing calculations if, and to the extent, approved by Agent in its
reasonable discretion.


 


§9.5         EBITDA to Fixed Charges.  The Borrower will not permit the ratio of its
EBITDA to Fixed Charges to be less than 1.35 to 1.0 for any period of two
fiscal quarters annualized, calculated as of the end of each fiscal
quarter.  Notwithstanding the foregoing,
extraordinary gains and losses shall not be annualized for purposes of the
foregoing calculations if, and to the extent, approved by Agent in its
reasonable discretion.


 


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§9.6         Minimum Tangible Net Worth.  The Borrower will not at any time permit its
Tangible Net Worth to be less than $75,000,000.


 


§10.        CONDITIONS
TO EFFECTIVENESS.


 


This Agreement shall become effective when
each of the following conditions precedent have been satisfied:


 


§10.1       Loan Documents.  Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Lenders. Each Lender shall have received a fully executed original of its Note
prior to or on the Closing Date.


 


§10.2       Good Standing Certificates and
Certified Copies.  The Agent shall
have received (i) a certificate of good standing for the Borrower from the
State of Maryland and a certificate of qualification for the Borrower to do
business from the State of Colorado, (ii) a copy of the Borrower’s
Articles of Incorporation certified by the Maryland Secretary of State,
(iii) a Certificate of Good Standing with respect to Mortgagor from the
State of its organization and a certificate of qualification to do business
from the State in which the Mortgaged Property owned by it is located, and
(iv) and certified copies of certificates of formation, operating
agreements, partnership agreements, certificates of limited partnership and
other applicable organizational documents with respect to the Mortgagor.


 


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


 


§10.4       Incumbency Certificate; Authorized
Signers.  The Agent shall have
received from the Borrower and Mortgagor an incumbency certificate, dated as of
the Closing Date, signed by a duly authorized officer of the Borrower and
Mortgagor and giving the name and bearing a specimen signature of each
Responsible Officer.


 


§10.5       Opinions of Counsel Concerning
Organization and Loan Documents.  The
Agent shall have received favorable opinions addressed to the Lenders and the
Agent and dated as of the Closing Date, in form and substance reasonably
satisfactory to the Lenders and the Agent from Borrower’s and Mortgagor’s
counsel, which opinion may rely on opinions from other law firms approved by
the Lenders as to matters of law applicable in the various states where the
Borrower or Mortgagor is organized.


 


§10.6       Payment of Fees.  The Borrower shall have paid to the Agent all
expenses as provided in §15 hereof then outstanding.


 


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§10.7       Compliance Certificate.  The Agent shall have received a Compliance
Certificate showing compliance with §8.3(d), and §9.3 through §9.6 as of
September 30, 2005 and for the fiscal periods ending thereon, adjusted in the
best good faith estimate of Borrower to reflect sales of assets, repayment of
debt and other material events occurring after September 30, 2005.


 


§10.8       Validity of Liens.  The Security Documents shall be effective to
create in favor of the Agent legal, valid and enforceable first priority,
perfected liens and security interests in the Collateral covered thereby,
subject only to the Permitted Liens. All filings, recordings, deliveries of
instruments and other actions or consents necessary or desirable in the opinion
of the Agent to grant, perfect, protect and preserve such liens and security
interests shall have been duly effected. The Agent shall have received evidence
thereof in form and substance satisfactory to the Agent.


 


§11.        CONDITIONS
TO ALL BORROWINGS.


 


The obligations of the Lenders to make any
Loan after the Closing Date shall also be subject to the satisfaction of the
following conditions precedent:


 


§11.1       Representations True; No Event of
Default; Compliance Certificate. 
Each of the representations and warranties of the Borrower and the
Mortgagor contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true and correct in all material respects as of the date as
of which they were made and shall also be true and correct in all material
respects at and as of the time of the making of such Loan, with the same effect
as if made at and as of that time (except to the extent of changes resulting
from transactions contemplated or permitted by this Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and except to the extent
that such representations and warranties relate expressly to an earlier date);
the Borrower shall have performed and complied with all terms and conditions
herein required to be performed by it or prior to the Borrowing Date of such
Loan; and no Default or Event of Default shall have occurred and be continuing
on the date of any Loan Request or on the Borrowing Date of such Loan; and
Agent shall have received a Compliance Certificate with computations evidencing
compliance with the covenants contained in §9.1 through §9.6 hereof after giving
effect to such requested Loan.


 


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


 


§11.3       Governmental Regulation.  Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.


 


§11.4       Proceedings and Documents.  All proceedings in connection with the
transactions contemplated by this Agreement, the other Loan Documents and all
other documents incident thereto shall be reasonably satisfactory in substance
and in form to the Agent, and the Lenders 


 


45

















 


shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.


 


§11.5       Revolving Credit Reinstatement Date.  The Revolving Credit Reinstatement Date shall
have occurred.


 


§12.        EVENTS
OF DEFAULT; ACCELERATION; ETC.


 


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


 


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


 


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


 


(c)           the Borrower shall fail to comply
with any of its covenants contained in §3.2, §7.5, §7.6, §7.7, §7.8, §8 or §9
hereof;


 


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


 


(e)           any representation or warranty of the
Borrower or Mortgagor in this Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection with
this Agreement, shall prove to have been false in any material respect upon the
date when made or deemed to have been made or repeated, provided, however, that
with respect to the representations and warranties of the Borrower contained in
§6.18 and §6.22 and in paragraphs (a), (c), (d), (e) and (f) of §33.4, if the
condition or event making the representation and warranty false is capable of
being cured by the Borrower, no enforcement action has been commenced against
the Borrower or the applicable Real Estate on account of such condition or
event nor is the applicable Real Estate subject to risk of forfeiture due to
such condition or event, and the Borrower promptly commences the cure thereof
after the Borrower’s first obtaining knowledge of such condition or event, the
Borrower shall have a period of thirty (30) days after the date that the
Borrower first obtained knowledge of such condition or event during which the
Borrower may cure such condition or event (or, if such condition or event is
not reasonably capable of being cured within such thirty (30) day period, such
additional period of time as may be reasonably required in order to cure such
condition or event but in any event such period shall not exceed six (6) months
from the date that the Borrower first obtained knowledge of such condition or
event), and no Event of Default shall exist hereunder during such thirty (30)
day or additional period so long as the Borrower continuously and diligently pursues
the cure of such condition or event and the other conditions to such cure
period have not changed;


 


46

















 


(f)            the Borrower, any of the Related
Companies or any Controlled Unconsolidated Entity shall fail to pay at
maturity, or within any applicable period of grace, any Indebtedness, or shall
fail to observe or perform any material term, covenant or agreement contained
in any agreement by which it is bound, evidencing or securing Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof, and in any event, such failure
shall continue for thirty (30) days, unless the aggregate amount of all such
defaulted Indebtedness plus the amount of any unsatisfied judgments described
in paragraph (i) of this §12.1 is less than $5,000,000.00;


 


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


 


(h)           a decree or order is entered
appointing any such trustee, custodian, liquidator or receiver or adjudicating
the Borrower, any of the Related Companies or any Controlled Unconsolidated
Entity bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of the
Borrower, any of the Related Companies or any Controlled Unconsolidated Entity
in an involuntary case under federal bankruptcy laws as now or hereafter
constituted;


 


(i)            there shall remain in force,
undischarged, unsatisfied and unstayed, for more than thirty days, whether or
not consecutive, any uninsured final judgment against the Borrower, any of the
Related Companies or any Controlled Unconsolidated Entity that, with other
outstanding uninsured final judgments, undischarged, against the Borrower, any
of the Related Companies or any Controlled Unconsolidated Entity plus the
amount of any defaulted Indebtedness under paragraph (f) of this §12.1, exceeds
in the aggregate $5,000,000.00;


 


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


 


47

















 


(k)           the Borrower, any of the Related
Companies or any Controlled Unconsolidated Entity shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any
assets of the Borrower;


 


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


 


(m)          [Intentionally Omitted];


 


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


 


(o)           The Named Executive shall cease to
hold the positions of Chief Executive Officer and President of Borrower;
provided, however, that an Event of Default shall not be deemed to have
occurred if the Named Executive is terminated as a result of a Termination for
Cause or is terminated as a result of death or disability and Borrower (A)
presents a plan for the replacement of the Named Executive reasonably
acceptable to the Majority Lenders within twenty (20) Business Days of such
event, and (B) a competent and experienced successor for the Named Executive is
approved by the Majority Lenders within ninety (90) days of such event causing
the termination of such employment, which approval may be granted or withheld
by the Majority Lenders in their sole and absolute discretion; or


 


(p)           a Change of Control shall occur
without the prior written consent of all Lenders; or


 


(q)           from and after the Revolving Credit
Reinstatement Date, if a Major Lease shall be cancelled or terminated by or on
behalf of Borrower or Mortgagor otherwise than (i) with the express prior
written agreement, consent or approval of the Agent, which shall not be
unreasonably withheld, conditioned or delayed, or (ii) by the applicable
tenant in accordance with the express terms of the original lease (excluding
any amendments thereto);


 


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


 


§12.2       Termination of Commitments.  If any one or more Events of Default
specified in §12.1(g) or §12.1(h) shall occur, any unused portion of the
Commitments hereunder, shall forthwith terminate and the Lenders shall be
relieved of all obligations to make Loans to the Borrower.  If any other Event of Default shall have
occurred and be continuing, the Agent, upon the election of the Majority
Lenders, may by notice to the Borrower terminate the unused portion


 


48

















 


of the Commitments hereunder, and upon such notice
being given such unused portion of the Commitments hereunder shall terminate
immediately and the Lenders shall be relieved of all further obligations to
make Loans. No termination of such Lender’s Commitment hereunder shall relieve
the Borrower of any of the Obligations or any of its existing obligations to
such Lender arising under other agreements or instruments.


 


§12.3       Remedies.  In case any one or more of the Events of
Default shall have occurred, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to §12.1, the Agent, on behalf
of the Lenders may, with the consent of the Majority Lenders, proceed to
protect and enforce the rights and remedies of the Agent and the Lenders under
this Agreement, the Notes or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the ex parte appointment of a receiver and, if any amount shall
have become due, by declaration or otherwise, to proceed to enforce the payment
thereof or any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or the Agent or the holder of any Note is intended to
be exclusive of any other remedy and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of
law.  Notwithstanding the provisions of
this Agreement providing that the Loans may be evidenced by multiple Notes in
favor of the Lenders, the Lenders acknowledge and agree that only the Agent may
exercise any remedies arising by reason of a Default or Event of Default.


 


§12.4       Distribution of Collateral Proceeds.  In the event that, during the continuance of
any Default or Event of Default, the Agent or any Lender as the case may be,
receives any monies in connection with the enforcement of any of the Loan
Documents, or otherwise with respect to the realization upon any of the
Collateral or any assets of Borrower or Mortgagor, such monies shall be
distributed for application as follows:


 


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


 


(b)           Second, to all other Obligations in
such order or preference as the Majority Lenders may determine; provided,
however, that (i) in the event that any Lender shall have wrongfully
failed or refused to make an advance under §2.6 and such failure or refusal
shall be continuing, advances made by other Lenders during the pendency of such
failure or refusal shall be entitled to be repaid as to principal and accrued
interest in priority to the other Obligations described in this subsection (b),
and (ii) distributions in respect of such Obligations shall be made among
the Lenders pro rata in accordance with each Lender’s respective Facility 


 


49

















 


Percentage; and provided, further, that the Agent may
in its discretion make proper allowance to take into account any Obligations
not then due and payable;


 


(c)           Third, upon payment and satisfaction
in full or other provisions for payment in full satisfactory to the Lenders and
the Agent of all of the Obligations, and to the payment of any obligations
required to be paid pursuant to applicable laws applicable to such enforcement;
and


 


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


 


§13.        SETOFF.


 


Borrower hereby grants to each Lender, a
continuing lien, security interest and right of setoff as security for all
liabilities and obligations to such Lender hereunder, whether now existing or
hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control
of such Lender or in transit to it.  At
any time, without demand or notice (any such notice being expressly waived by
Borrower), any Lender may, WITH THE PRIOR APPROVAL OF THE AGENT, setoff the
same or any part thereof and apply the same to any liability or obligation of
Borrower hereunder even though unmatured and regardless of the adequacy of any
other collateral securing the Obligations. 
ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a)
if an amount to be set off is to be applied to Indebtedness of the Borrower to
such Lender, other than Indebtedness evidenced by the Notes held by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness evidenced by all such Notes held by such Lender, and (b) if
such Lender shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by such Lender by proceedings against the
Borrower at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall
retain and apply to the payment of the Note or Notes held by such Lender any
amount in excess of its ratable portion of the payments received by all of the
Lenders with respect to the Notes held by all of the Lenders, such Lender will
make such disposition and arrangements with the other Lenders with respect to
such excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of
the Notes held by it its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Lender, such disposition and arrangements shall
be rescinded and the amount restored to the extent of such recovery, but
without interest.  Notwithstanding the
foregoing, no Lender shall exercise a right of setoff if such exercise would
limit or prevent the exercise of any other remedy or other recourse against the
Borrower.


 


50

















 


§14.        THE AGENT.


 


§14.1       Authorization.  The Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by the Agent.  The obligations of Agent hereunder are
primarily administrative in nature, and nothing contained in this Agreement or
any of the other Loan Documents shall be construed to constitute the Agent as a
trustee for any Lender or to create any agency or fiduciary relationship.  Agent shall act as the contractual representative
of the Lenders hereunder, and notwithstanding the use of the term “Agent”, it
is understood and agreed that the Agent shall not have any fiduciary duties or
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the other
Loan Documents.  The Borrower and any
other Person shall be entitled to conclusively rely on a statement from the
Agent that it has the authority to act for and bind the Lenders pursuant to
this Agreement and the other Loan Documents.


 


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


 


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


 


§14.4       No Representations.  The Agent shall not be responsible for the
execution or validity or enforceability by or against Borrower or Mortgagor of
this Agreement, the Notes, any of the other Loan Documents or any instrument at
any time constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower, or be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for the
Notes. The Agent shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to it by the Borrower or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete. The
Agent has not made nor does it now make any representations or warranties,


 


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express or implied, nor does it assume any liability
to the Lenders, with respect to the credit worthiness or financial condition of
the Borrower or its Subsidiaries or any other Person.  Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender, and
based upon such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender, based
upon such information and documents as it deems appropriate at the time,
continue to make its own credit analysis and decisions in taking or not taking
action under this Agreement and the other Loan Documents.  Agent’s counsel has only represented Agent
and KeyBank in connection with the Loan Documents and the only attorney-client
relationship or duty of care is between Agent’s counsel and Agent or KeyBank.
Each Lender has been independently represented by separate counsel on all
matters regarding the Loan Documents and the granting and perfecting of liens
in the Collateral.


 


§14.5       Payments.


 


(a)           A payment by the Borrower to the
Agent hereunder or any of the other Loan Documents for the account of any
Lender shall constitute a payment to such Lender subject to the pro rata rights
to repayment based upon the Facility Percentage of each Lender. The Agent
agrees, promptly after the Agent’s receipt of good funds as determined in
accordance with Agent’s customary practices, to distribute to each Lender such
Lender’s pro rata share of payments received by the Agent for the account of
the Lenders except as otherwise expressly provided herein or in any of the
other Loan Documents.


 


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


 


(c)           Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents, any
Lender that fails (i) to make available to the Agent its pro rata share of any
Loan or (ii) to comply with the provisions of §12 and §13  with respect to making dispositions and
arrangements with the other Lenders, where such Lender’s share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Lenders, in each case as, when and
to the full extent required by the provisions of this Agreement, or to adjust
promptly such Lender’s outstanding principal and its pro rata Facility
Percentage as provided in §2.7 hereof, shall be deemed delinquent (a “Delinquent
Lender”) and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied.  A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Loans, interest, fees or otherwise,
to the remaining nondelinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Loans.  The Delinquent Lender hereby authorizes the
Agent to distribute such payments to the nondelinquent Lenders in proportion to
their respective


 


52

















 


pro rata shares of all outstanding Loans.  In addition to the rights and remedies that
may be available to the Agent at law and in equity, a Defaulting Lender’s right
to participate in the administration of the Loan Documents, including, without
limitation, any rights to consent to or direct any action or inaction of the
Agent pursuant to this Agreement or otherwise, or to be taken into account in
the calculation of Majority Lenders or any matter requiring approval of all of
the Lenders, shall be suspended while such Lender is a Defaulting Lender.  A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans of the nondelinquent Lenders, the
Lenders’ respective pro rata shares of all outstanding Loans have returned to
those in effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency. 
The provisions of this Section shall apply and be effective regardless
of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Agreement to the contrary or
(ii) any instruction of Borrower as to its desired application of
payments.  The Agent shall be entitled to
(i) withhold or set off, and to apply to the payment of the obligations of
any Delinquent Lender any amounts to be paid to such Delinquent Lender under
this Agreement, and (ii) bring an action or suit against such Delinquent
Lender in a court of competent jurisdiction to recover the defaulted
obligations of such Delinquent Lender and, to the extent such recovery would
not fully compensate the Lenders for the Delinquent Lender’s breach of this
Agreement, to collect damages.  In
addition, the Delinquent Lender shall indemnify, defend and hold Agent and each
of the other Lenders harmless from and against any and all claims, actions,
liabilities, damages, costs and expenses (including attorneys’ fees and
expenses), plus interest thereon at the Default rate of interest set forth in
§4.10, for funds advanced by Agent or any other Lender on account of the
Delinquent Lender or any other damages such Persons may sustain or incur by
reason of or as a direct consequence of the Delinquent Lender’s failure or
refusal to abide by its obligations under this Agreement.


 


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


 


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


 


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


 


§14.9       Resignation.  The Agent may resign at any time by giving
thirty (30) days prior written notice thereof to the Lenders and the
Borrower.  Upon any such resignation, the
Majority


 


53

















 


Lenders shall have the right to appoint a successor
Agent.  Unless a Default or Event of
Default shall have occurred and be continuing, appointment of such successor
Agent shall be subject to the reasonable approval of the Borrower.  If no successor Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within thirty (30) days after the giving of notice of resignation or the
Borrower has disapproved or failed to approve a successor agent within such
period, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a financial institution having a rating of not
less than A2/P2 or its equivalent by Standard & Poor’s Corporation. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent’s resignation, the provisions of this Agreement and the other
Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.


 


§14.10     Notification of Defaults and Events of
Default.  Each Lender hereby agrees
that, upon learning of the existence of a Default or an Event of Default, it
shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this §14.10 it shall promptly notify the other
Lenders of the existence of such Default or Event of Default.


 


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


 


§14.12     Bankruptcy.  In the event a bankruptcy or other insolvency
proceeding is commenced by or against Borrower, the Agent shall have the sole
and exclusive right to file and pursue a joint proof claim on behalf of all
Lenders.  Each Lender irrevocably waives
its right to file or pursue a separate proof of claim in any such proceedings.


 


§15.        EXPENSES.


 


The Borrower agrees to pay (a)
any taxes (including any interest and penalties in respect thereto) payable by
the Agent or any of the Lenders (other than taxes based upon the Agent’s or any
Lender’s net income), including any recording, mortgage, documentary or
intangibles taxes in connection with the Loan Documents, or other taxes payable
on or with respect to the transactions contemplated by this Agreement,
including any taxes payable by the Agent or any of the Lenders after the
Closing Date (the Borrower hereby agreeing to indemnify the Lenders with
respect thereto), (b) all title examination costs, appraisal fees, recording
costs and the reasonable


 


54

















 


fees, expenses
and disbursements of the Agent’s counsel or any local counsel to the Agent
incurred in connection with the preparation, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, and amendments, modifications, approvals, consents or waivers hereto
or hereunder, (c) the reasonable fees, costs, expenses and disbursements of the
Agent incurred in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
(d) the fees, costs, expenses and disbursements of the Agent incurred in
connection with the syndication and/or participation of the Loans, (e) all
reasonable out-of-pocket expenses (including reasonable attorneys’ fees and
costs, which attorneys may be employees of any Lender or the Agent and the fees
and costs of appraisers, engineers, investment bankers, surveyors or other
experts retained by the Agent or any Lender in connection with any such
enforcement proceedings) incurred by any Lender or the Agent in connection with
(i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or the administration thereof after the
occurrence of a Default or Event of Default (including, without limitation,
expenses incurred in any restructuring and/or “workout” of the Loans), and (ii)
any litigation, proceeding or dispute whether arising hereunder or otherwise,
in any way related to the Agent’s or the Lender’s relationship with the
Borrower, any Controlled Unconsolidated Entity or any of the Related Companies,
(f) all reasonable fees, expenses and disbursements of the Agent incurred in
connection with UCC searches, UCC filings or mortgage recordings, (g) all
reasonable costs incurred by the Agent in the future in connection with its
inspection of the Real Estate, and (h) the reasonable fees, costs, expenses and
disbursements of the Agent incurred in connection with the granting of any
collateral by the Borrower, including, without limitation, the costs incurred
by the Agent in connection with its inspection of such collateral, and the fees
and disbursements of the Agent’s counsel. The covenants of this §15 shall
survive payment or satisfaction of payment of amounts owing with respect to the
Notes.


 


§16.        INDEMNIFICATION.


 


The Borrower agrees to
indemnify and hold harmless the Agent and the Lenders and the shareholders,
directors, agents, officers, subsidiaries, and affiliates of the Agent and the
Lenders and any Person that controls the Agent or any Lender from and against
any and all claims, actions or causes of action and suits whether groundless or
otherwise, and from and against any and all liabilities, losses, settlement
payments, obligations, damages and expenses of every nature and character
arising out of this Agreement or any of the other Loan Documents or the
transactions contemplated hereby or which otherwise arise in connection with
the financing including, without limitation except to the extent caused by the
gross negligence or willful misconduct of a Lender or the Agent as determined
by a court of competent jurisdiction after the exhaustion of all applicable
appeal periods (but such limitation on indemnification shall only apply to the
Agent or Lender that is being grossly negligent or committing willful
misconduct), (a) any actual or proposed use by the Borrower of the proceeds of
any of the Loans, (b) any actual or alleged infringement of any patent,
copyright, trademark, service mark or similar right of the Borrower, (c) the
Borrower entering into or performing this Agreement or any of the other Loan
Documents or (d) with respect to the Borrower and its respective properties,
the violation of any Environmental Law, the Release or threatened Release of
any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including, but
not limited to claims with respect to wrongful death, personal injury or damage
to property), (e) any cost, claim liability, damage or expense in connection
with any


 


55

















 


harm the
Borrower may be found to have caused in the role of a broker, in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such investigation,
litigation or other proceeding. In litigation, or the preparation therefor, the
Lenders and the Agent shall each be entitled to select their own separate
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower under this §16 are unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment in satisfaction of such obligations which is permissible under
applicable law. The provisions of this §16 shall survive the repayment of the
Loans and the termination of the obligations of the Lenders hereunder and shall
continue in full force and effect as to the Lenders so long as the possibility
of any such claim, action, cause of action or suit exists under applicable law,
rule or regulation.


 


§17.        SURVIVAL OF COVENANTS, ETC.


 


All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower or Mortgagor pursuant hereto shall be deemed to have been relied
upon by the Lenders and the Agent, notwithstanding any investigation heretofore
or hereafter made by it, and shall survive the making by the Lenders of the
Loans, as herein contemplated, and shall continue in full force and effect so
long as any amount due under this Agreement or the Notes or any of the other
Loan Documents remains outstanding or the Lenders have any obligation to make
any Loans. The indemnification obligations of the Borrower provided herein and
the other Loan Documents shall survive the full repayment of amounts due and
the termination of the obligations of the Lenders hereunder and thereunder to
the extent provided herein and therein. All statements contained in any
certificate delivered to the Agent or any Lender at any time executed on behalf
of the Borrower or Mortgagor pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and
warranties by the Borrower hereunder.


 


§18.        ASSIGNMENT; PARTICIPATIONS; ETC.


 


§18.1       Conditions to Assignment by Lenders.  Except as provided herein, each Lender may
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of its
Facility Percentage and Commitment and the same portion of the Loans at the
time owing to it, and the Notes held by it); provided that (a) the Agent shall
have given its prior written consent to such assignment except that such
consent shall not be needed with respect to an assignment from a Lender to one
of its Affiliated Lenders, (b) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender’s rights and obligations
under this Agreement, (c) each assignment shall be in an amount of not less
than $3,000,000 that is a whole multiple of $1,000,000, (d) each Lender shall
either assign its entire Commitment or shall retain, free of any such
assignment, an amount of its Commitment of not less $3,000,000 and (e) the
parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit D hereto (an “Assignment
and Acceptance”) , together with any Notes subject to such assignment. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each


 


56

















 


Assignment and Acceptance, (i) the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder, and (ii) the
assigning Lender shall, to the extent provided in such assignment and upon
payment to the Agent of the registration fee referred to in §18.3, be released
from its obligations under this Agreement.


 


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


 


§18.3       Register.  The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the “Register”)
for the recordation of the names and addresses of the Lenders and the Facility
Percentages of, and principal amount of the Loans owing to the Lenders from
time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower and the Lenders at any reasonable time and from time to time upon
reasonable prior notice.  Upon each such
recordation, the assigning Lender agrees to pay to the Agent a registration fee
in the sum of


 


57

















 


$2,500.00.  The
Agent may amend Schedules 1 and 1.1 hereof to reflect the recording of
any such assignments.


 


§18.4       New Notes.  Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each Note
subject to such assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Agent, in exchange for each surrendered Note,
a new Note to the order of such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained some portion of its Loans
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the amount retained by it hereunder. Such new Notes shall provide that they
are replacements for the surrendered Notes and that they do not constitute a
novation, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes. The surrendered Notes shall be cancelled and returned to
the Borrower.


 


§18.5       Participations.  Each Lender may sell participations to one or
more banks or other entities in a portion of such Lender’s rights and obligations
under this Agreement and the other Loan Documents not to exceed forty-nine
percent (49%) of its Facility Percentage; provided that (a) the Agent shall
have given its prior written consent to such participation, except that any
Lender may sell participations to its Affiliated Lenders without such consent,
(b) each such participation shall be in an amount of not less than $3,000,000
that is a whole multiple of $1,000,000, (c) any such sale or participation
shall not affect the rights and duties of the selling Lender hereunder to the
Borrower and the Lender shall continue to exercise all approvals, disapprovals
and other functions of a Lender, (d) such participation shall not entitle such
participant to any rights or privileges under this Agreement or the Loan
Documents, including, without limitation, the right to approve waivers,
amendments or modifications, (e) such participant shall have no direct rights
against the Borrower except the rights granted to the Lenders pursuant to §13,
(f) such sale is effected in accordance with all applicable laws, (g) such
participant shall not be a Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, the
Borrower, any Related Company or any Unconsolidated Entity or any affiliate
thereof, and (h) no participant shall have the right to grant further
participations or assign its rights, obligations or interests under such
participation to other Persons without the prior written consent of the Agent.


 


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


 


§18.7       No Assignment by Borrower.  The Borrower shall not assign or transfer any
of its rights or obligations under any of the Loan Documents without the prior
written consent of each of the Lenders.


 


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§18.8       Disclosure.  The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Lender may
disclose information obtained by such Lender pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.


 


§18.9       Mandatory Assignment.  In the event Borrower requests that certain
amendments, modifications or waivers be made to this Agreement or any of the
other Loan Documents which request is approved by Agent but is not approved by
one or more of the Lenders (any such non-consenting Lender shall hereafter be
referred to as the “Non-Consenting Lender”), then, within thirty (30) days
after Borrower’s receipt of notice of such disapproval by such Non-Consenting
Lender, Borrower shall have the right as to such Non-Consenting Lender, to be
exercised by delivery of written notice delivered to the Agent and the
Non-Consenting Lender within thirty (30) days of receipt of such notice, to
elect to cause the Non-Consenting Lender to transfer its Commitment.  The Agent shall promptly notify the remaining
Lenders that each of such Lenders shall have the right, but not the obligation,
to acquire a portion of the Commitment, pro rata based upon their relevant
Facility Percentages, of the Non-Consenting Lender (or if any of such Lenders
does not elect to purchase its pro rata share, then to such remaining Lenders
in such proportion as approved by the Agent). 
Upon any such purchase of the Commitment of the Non-Consenting Lender,
the Non-Consenting Lender’s interests in the Obligations and its rights
hereunder and under the Loan Documents shall terminate at the date of purchase,
and the Non-Consenting Lender shall promptly execute and deliver any and all
documents reasonably requested by Agent to surrender and transfer such
interest, including, without limitation, an Assignment and Acceptance
substantially in the form attached hereto as Exhibit D and such
Non-Consenting Lender’s original Note. 
The purchase price for the Non-Consenting Lender’s Commitment shall
equal any and all amounts outstanding and owed by Borrower to the
Non-Consenting Lender, including principal and all accrued and unpaid interest
or fees, plus any applicable prepayment fees which would be owed to such
Non-Consenting Lender if the Loans were to be repaid in full on the date of
such purchase of the Non-Consenting Lender’s Commitment (provided that Borrower
may pay the amount of any interest, fees or other amounts (other than
principal) owed to such Non-Consenting Lender).


 


§18.10     Co-Agents.  The Arranger shall not have any additional
rights or obligations under the Loan Documents, except for those rights, if
any, as a Lender.


 


§19.        NOTICES, ETC.


 


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


 


(a)           if to the Borrower, at 1780 S.
Bellaire Street, Suite 100, Denver, CO 80222 Attention:  Chief Financial Officer, Telefax No.
303-296-7353 or at such other address for notice as the Borrower shall last
have furnished in writing to the Agent; and


 


59

















 


(b)           if to the Agent, at 1200 Abernathy
Road, Suite 1550, Atlanta, Georgia 30328, Attn: Dan Stegemoeller, Senior
Banker, Telefax No. 770-804-6443 and to KeyBank National Association, 127
Public Square, Cleveland, Ohio 44114-1306, Real Estate Capital Services or such
other address for notice as the Agent shall last have furnished in writing to
the Borrower.


 


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


 


Any such notice or demand shall
be deemed to have been duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a responsible officer of
the party to which it is directed, at the time of the receipt thereof by such
officer or the sending of such facsimile (as evidenced by confirmation of
successful transmission) and (ii) if sent by registered or certified first-class
mail, postage prepaid, on the third Business Day following the mailing thereof.


 


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


 


THIS AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). 
BORROWER AGREES THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT ONLY IN THE COURTS
OF THE STATE OF GEORGIA OR ANY FEDERAL COURT SITTING THEREIN AND BORROWER
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT
OR ANY LENDER AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN §19. BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR
ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM. IN
ADDITION TO THE COURTS OF THE STATE OF GEORGIA OR ANY FEDERAL COURT SITTING
THEREIN, THE AGENT OR ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT ON A
NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR ASSETS OF BORROWER EXIST AND THE
BORROWER CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN §19.


 


§21.        HEADINGS.


 


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


 


60

















 


§22.        COUNTERPARTS.


 


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


 


§23.        ENTIRE AGREEMENT.


 


This Agreement and the Loan
Documents is intended by the parties as the final, complete and exclusive
statement of the transactions evidenced by this Agreement and the Loan
Documents.  All prior or contemporaneous
promises, agreements and understandings, whether oral or written, are deemed to
be superceded by this Agreement and the Loan Documents, and no party is relying
on any promise, agreement or understanding not set forth in this Agreement and
the Loan Documents. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §25.


 


§24.        WAIVER OF JURY TRIAL AND CERTAIN
DAMAGE CLAIMS.


 


THE BORROWER, THE AGENT AND
EACH LENDER HEREBY MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF AGENT OR THE LENDERS RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE
THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  EXCEPT AS PROHIBITED BY LAW, BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES.  BORROWER
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.  THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR LENDERS TO PROVIDE THE COMMITMENTS AND MAKE THE LOANS.


 


§25.        CONSENTS, AMENDMENTS, WAIVERS, ETC.


 


Except as otherwise expressly
provided in this Agreement or the other Loan Documents, any consent or approval
required or permitted by this Agreement or the other Loan Documents may be
given, and any term of this Agreement or of any other instrument related hereto
or


 


61

















 


mentioned
herein may be amended, and the performance or observance by the Borrower or
Mortgagor of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with,
but only with, the written consent of the Majority Lenders.  Notwithstanding the foregoing, none of the
following may occur without the written consent of each Lender:  a decrease in the rate of interest on and the
term of the Notes; except as provided in §33, an increase in the amount of the
Commitments of the Lenders; a forgiveness, reduction or waiver of the principal
of any unpaid Loan or any interest thereon or fee payable to the Lenders under
the Loan Documents; the postponement of any date fixed for any payment of
principal of or interest on the Loan; an extension of the Maturity Date; a
change in the manner of distribution of any payments to the Lenders or the
Agent; the release of the Borrower or Mortgagor; an amendment of the definition
of Majority Lenders or of any requirement for consent by all of the Lenders;
any modification to require a Lender to fund a pro rata
share of a request for an advance of the Loan made by the Borrower other than
based on its Facility Percentage; an amendment to this §25; or an amendment of
any provision of this Agreement or the Loan Documents which requires the
approval of all of the Lenders or the Majority Lenders to require a lesser
number of Lenders to approve such action. 
Notwithstanding the foregoing, Agent may unilaterally in its discretion
grant Borrower a waiver of the covenant in §3.2 for a period not to exceed
ninety (90) days, provided that such waiver may only be granted once in any
calendar year.  No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon.  The provisions of §14 may not
be amended without the written consent of the Agent.  No course of dealing or delay or omission on
the part of the Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.


 


§26.        SEVERABILITY.


 


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


 


§27.        RELATIONSHIP.


 


Neither the Agent nor any
Lender has any fiduciary relationship with or fiduciary duty to the Borrower
arising out of or in connection with the Agreement or the other Loan Documents
or the transactions contemplated hereunder and thereunder, and the relationship
between each Lender and the Borrower is solely that of a lender and borrower,
and nothing contained herein or in any of the other Loan Documents shall in any
manner be construed as making the parties hereto partners, joint venturers or
any other relationship other than lender and borrower.


 


§28.        DEALINGS WITH THE BORROWER.


 


The Agent, the Lenders and
their affiliates may accept deposits from, extend credit to and generally
engage in any kind of banking, trust or other business with the Borrower or any
of its


 


62

















 


affiliates or
Subsidiaries regardless of the capacity of the Agent or the Lenders
hereunder.  The Lenders acknowledge that,
pursuant to such activities, KeyBank or its Affiliates may receive information
regarding such Persons (including information that may be subject to
confidentiality obligations in favor of such Person) and acknowledge that the
Agent shall be under no obligation to provide such information to them.


 


§29.        NO UNWRITTEN AGREEMENTS.


 


THE
WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.  THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


§30.        TIME OF THE ESSENCE.


 


Time is of the essence with
respect to each and every covenant, agreement and obligation of the Borrower
under this Agreement and the other Loan Documents.


 


§31.        RIGHTS OF THIRD PARTIES.


 


(a)           This Agreement and the other Loan
Documents are made and entered into for the sole protection and legal benefit
of the Borrower, the Lenders, and the Agent, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents.


 


(b)           All conditions to the performance of
the obligations of the Agent and the Lenders under this Agreement, including
the obligation to make Loans, are imposed solely and exclusively for the
benefit of the Agent and the Lenders and no other Person shall have standing to
require satisfaction of such conditions in accordance with their terms or be
entitled to assume that the Agent and the Lenders will refuse to make advances
of proceeds of the Loan in the absence of strict compliance with any or all
thereof and no other Person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any and all of which may be freely waived in
whole or in part by the Agent and the Lenders at any time if in their sole
discretion they deem it desirable to do so.


 


§32.        PATRIOT ACT.


 


Each Lender and the Agent (for
itself and not on behalf of any Lender) hereby notifies Borrower and Mortgagor
that, pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies Borrower and Mortgagor,
which information includes names and addresses and other information that will
allow such Lender or the Agent, as applicable, to identify Borrower and
Mortgagor in accordance with the Patriot Act.


 


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§33.        REINSTATEMENT OF REVOLVING CREDIT
FACILITY.


 


§33.1       Revolving Credit Conditions.


 


(a)           In the event that Borrower shall
satisfy each of the conditions (as reasonably determined by Agent) set forth in
§33.1(b) on or before March 31, 2006 (the “Revolving Credit Conditions”), then
the provisions of §§33.2, 33.3 and 33.4 and any other provisions of this
Agreement which by their terms are applicable from and after the Revolving
Credit Reinstatement Date shall be applicable.


 


(b)           The Revolving Credit Reinstatement
Date shall only occur upon satisfaction of each of the following Revolving
Credit Conditions on or before March 31, 2006:


 


(i)            Agent shall have received evidence
satisfactory to Agent that the term of the Employment Contract shall have been
extended to a term ending not sooner than the Maturity Date as contemplated by
§33.2;


 


(ii)           No Default or Event of Default shall
have occurred and be continuing (assuming for the purposes thereof that the
provisions of §9.1 and §9.2 are in effect);


 


(iii)          Agent shall have approved the cash
flow projections of Borrower for 2006;


 


(iv)          The Real Estate Asset commonly known
as Financial Plaza shall have been sold by Borrower or a Related Company, shall
have generated Net Sales Proceeds of not less than $25,000,000.00, and the
Outstanding Obligations shall be less than $4,000,000.00;


 


(v)           Each of the representations and
warranties of the Borrower and the Mortgagor contained in this Agreement or any
other Loan Documents (including for the purposes hereof the representations in
§33.4) or in any document or instrument delivered pursuant to or in connection
with this Agreement shall be true and correct in all material respects as of
the date on which they were made and shall also be true and correct in all material
respects at and as of the satisfaction of the Revolving Credit Conditions, with
the same effect as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or permitted by this Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and except
to the extent that such representations and warranties relate expressly to an
earlier date);


 


(vi)          The Mortgaged Property has not been
released as collateral for the Loans;


 


(vii)         Borrower shall have delivered to Agent
a rent roll for the Mortgaged Property in form and substance reasonably
satisfactory to Agent dated not more than 30 days prior to the Revolving Credit
Reinstatement Date;


 


(viii)        Agent shall have received a Compliance
Certificate showing compliance with §8.3(d) and §9.1 through §9.6 (assuming for
the purposes thereof that the provisions of §9.1 and §9.2 are in effect) as of
September 30, 2005, adjusted in the best good


 


64

















 


faith estimate of Borrower to the Revolving Credit
Reinstatement Date to reflect sales of assets, repayment of debt and other
material events occurring after September 30, 2005.


 


§33.2       Extension of Maturity Date.  Upon satisfaction of the Revolving Credit
Conditions as provided above, the Maturity Date shall be the earlier of
December 28, 2006 or such earlier date on which the Loan shall become due and
payable pursuant to the terms of this Agreement.


 


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


 


§33.4       Additional Representations.  The Borrower represents and warrants to the
Agent and each of the Lenders as of the Revolving Credit Reinstatement Date and
as of the date of each Loan thereafter as follows:


 


(a)           Leases.  A rent roll as of a date not more than 30
days prior to the Revolving Credit Reinstatement Date with respect to all
Leases of any portion of the Mortgaged Property that is accurate in all
material respects has been delivered to Agent as the same shall be supplemented
each fiscal quarter by a certificate signed by an authorized officer of
Borrower. The Leases reflected on such rent roll constitute the sole and
complete material agreements and understandings relating to leasing or
licensing of space in the Buildings or otherwise at the Mortgaged
Property.  The Borrower has delivered to
the Agent a true and complete copy of all Leases.  There are no occupancies, rights, privileges
or licenses in or to the Buildings or any other part of the Mortgaged Property
other than pursuant to the Leases reflected on such rent roll.  Except as set forth on such rent roll the
Leases reflected thereon are in full force and effect, in accordance with their
respective terms, without any payment default or any other material default
thereunder, nor are there any material defenses, counterclaims, offsets,
concessions or rebates available to any tenant thereunder, and neither the
Borrower nor the Mortgagor has given or made, or received, any notice of
default, or any claim, which remains uncured or unsatisfied, with respect to
any of the Leases and, to the best of the knowledge of the Borrower and of the


 


65

















 


Mortgagor there is no basis for any such claim or
notice of default by any tenant.  Such
rent roll accurately and completely sets forth all rents payable by tenants, no
tenant having paid more than one month’s rent in advance. All tenant
improvements or work to be done, furnished or paid for by the landlord, or
credited or allowed to a tenant, for, or in connection with, the Buildings
pursuant to any Lease have been completed and paid for, or provided for in a
manner reasonably satisfactory to the Agent, or will be paid for by the
Borrower or the Mortgagor in the ordinary course of its business. No leasing,
brokerage or like commissions, fees or payments are due from the Borrower or
the Mortgagor in respect of the Leases, except those that will be paid for by
the Borrower or the Mortgagor in the ordinary course of its business. Except as
set forth on such rent roll, all tenants under all Leases are in occupancy and
operating the premises covered by such Leases within the permitted uses under
such Leases.


 


(b)           Mortgaged Properties.  The Borrower makes the following additional
representations and warranties to the best of Borrower’s knowledge concerning
the Mortgaged Property.


 


(i)            Off Site Utilities.  All water, sewer, electric, gas, telephone
and other utilities are installed to the property lines of the Mortgaged
Property and, except in the case of drainage facilities, are connected to the
Buildings located thereon with valid permits and are adequate to service the
Buildings in full compliance with applicable law; and the Buildings are
properly and legally connected directly to, and served exclusively by, public
water and sewer systems. No easements over land of others not yet obtained are
required for any such utilities, and no drainage of surface or other water
across land of others is required except as disclosed in the surveys previously
delivered to Agent.


 


(ii)           Access; Etc.  The streets abutting the Mortgaged Property
are public roads, to which the Mortgaged Property has direct access by trucks
and other motor vehicles and by foot, or are private ways (with direct access
by trucks and other motor vehicles and by foot to public roads) to which the
Mortgaged Property has direct access without charge or liability for
maintenance or repair. No easements over land of others not yet obtained are
required for such means of access and egress except as disclosed in the surveys
previously delivered to Agent.


 


(iii)          Independent Building.  The Buildings on the Mortgaged Property are
fully independent from any other real estate in all respects including, without
limitation, in respect of structural integrity, heating, ventilating and air
conditioning, plumbing, mechanical and other operating and mechanical systems,
and electrical, sanitation and water systems, all of which are connected
directly to off site utilities located in public streets or ways. The Buildings
are located on lots which are separately assessed for purposes of real estate
tax assessment and payment. The Buildings, all Building Service Equipment and
all paved or landscaped areas related to or used in connection with the
Buildings are located wholly within the perimeter lines of the lot or lots on
which the Mortgaged Property is located except as disclosed in the surveys previously
delivered to Agent.


 


(iv)          Condition of Building; No Asbestos.  There are no material defects in the roof,
foundation, structural elements and masonry walls of the Buildings or their
heating, ventilating and air conditioning, electrical, sprinkler, plumbing or
other mechanical systems or


 


66

















 


their Building Service Equipment; the Buildings are
fully sprinkled; and no asbestos is located in or on the Buildings except as
has been disclosed to Agent in writing.


 


(v)           Building Compliance with Law;
Permits.  The Buildings as presently
constructed and used do not violate any applicable federal or state law or
governmental regulation, or any local ordinance, order or regulation, including
but not limited to laws, regulations, or ordinances relating to zoning,
building use and occupancy, subdivision control, fire protection, health and
sanitation; and the zoning laws permit use of the Buildings for their current
use; there is such number of parking spaces on the lot or lots on which the
Mortgaged Property is located as is adequate under the zoning laws to permit
use of the Buildings for their current use; and all private ways providing
access to the Mortgaged Property are zoned in a manner which will permit access
to the Buildings over such ways by trucks and other commercial and industrial
vehicles.  All Permits required for the
operation and maintenance of the Mortgaged Property, including without
limitation, building permits, curb cut permits, water connection permits, sewer
extension or connection permits and other permits relating to the use of
utilities, and permits required under the Federal Clean Air Act, as amended,
the Federal Clean Water Act, as amended, and by state law or regulations
consistent with the requirements of said Acts, have been validly issued by the
appropriate governmental Persons and are now in full force and effect.


 


(vi)          No Required Real Property Consents,
Permits, Etc.  Neither the Borrower
nor Mortgagor has received any notices of, nor has any knowledge of, any
Permits, utility installations and connections (including, without limitation,
drainage facilities, curb cuts and street openings), or private consents
required for the maintenance, operation, servicing and use of the Mortgaged
Property for its current use which have not been granted, effected, or
performed and completed (as the case may be) or any fees or charges therefor
which have not been fully paid.


 


(vii)         Suits; Judgments.  There are no outstanding notices, suits,
orders, decrees or judgments relating to zoning, building use and occupancy,
subdivision control, fire protection, health, sanitation, or other violations
affecting, against, or with respect to, the Mortgaged Property or any part
thereof.


 


(viii)        Insurance.  Neither the Borrower nor Mortgagor has
received any notices from any insurer or its agent requiring performance of any
work with respect to the Mortgaged Property or canceling or threatening to
cancel any policy of insurance, or increasing the annual premiums thereunder by
more than 30%, unless substantially all of such premium increase may by passed
through to the tenants under the Leases.


 


(ix)           Real Property Taxes; Special
Assessments.  There are no unpaid or
outstanding real estate or other taxes or assessments on or against the
Mortgaged Property or any part thereof which are payable by Mortgagor or
tenants (except only real estate taxes not yet due and payable).  There are no betterment assessments or other
special assessments presently pending with respect to any portion of the
Mortgaged Property, and Mortgagor has received no notice of any such special
assessment being contemplated.


 


67

















 


(x)            Historic Status.  The Buildings are not historic structures or
landmarks, and the Mortgaged Property is not within any historic district
pursuant to any federal, state or local law or governmental regulation.


 


(xi)           Eminent Domain.  There are no pending eminent domain
proceedings against the Mortgaged Property or any part thereof, and, to the
Borrower’s knowledge, no such proceedings are presently threatened or
contemplated by any taking authority.


 


(xii)          No Options.  No person or entity has any right or option
to acquire the Mortgaged Property or any portion thereof or interest therein or
lease any portion thereof or additional portion thereof.


 


§33.5       Appraisals.  The initial Appraised Value of the Mortgaged
Property shall be $25,000,000.00, and may change only upon the approval by the
Agent of a new or updated Appraisal of such Mortgaged Property.  The Agent shall obtain a new or updated
Appraisal of the Mortgaged Property (i) promptly following a written request
from the Borrower, (ii) at any time if required by bank regulatory
requirements, (iii) at any time if, in the opinion of the Agent, there may have
been a material adverse change in the Appraised Value of the Mortgaged Property
and (iv) during the continuation of an Event of Default, if requested by any
Lender. The Borrower shall provide to the Agent all available information
needed to assist in the preparation of an Appraisal and shall pay to the Agent
on demand all reasonable costs of all such Appraisals, provided, however, that
Borrower will not have to bear the cost of Appraisals more frequently than
approximately every other year, unless such Appraisal is ordered pursuant to
clause (i) or clause (iv) above.


 


§34.        WAIVER OF CLAIMS.


 


The Borrower acknowledges,
represents and agrees that it has no defenses, setoffs, claims, counterclaims
or causes of action of any kind or nature whatsoever with respect to the Loan
Documents, the administration or funding of the Loans or with respect to any
acts or omissions of Agent or the Lenders, or any past or present officers,
agents or employees of the Agent or the Lenders, and the Borrower does hereby
expressly waive, release and relinquish any and all such defenses, setoffs,
claims, counterclaims and causes of action, if any.


 


[SIGNATURES
BEGIN ON FOLLOWING PAGE]


 


68

















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  AMERIVEST
  PROPERTIES INC., a Maryland

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles K. Knight

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Charles K. Knight

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel P. Stegemoeller

  	
   

  
	
   

  	
  Name:

  	
  Daniel P. Stegemoeller

  	
   

  
	
   

  	
  Title:

  	
  Senior Banker

  	
   

  
											



 


69

















 


Lender
Signature Page


 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel P. Stegemoeller

  	
   

  
	
   

  	
  Name:

  	
  Daniel P. Stegemoeller

  	
   

  
	
   

  	
  Title:

  	
  Senior Banker

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Commitment:

  	
  $35,611,832.49

  
	
   

  	
   

  
	
  Facility
  Percentage:

  	
  100%

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  KeyBank National Association

  
	
   

  	
  1200 Abernathy Road

  
	
   

  	
  Suite 1550

  
	
   

  	
  Atlanta, Georgia 30328

  
	
   

  	
  Attn: Dan Stegemoeller

  
	
   

  	
  Fax: (770) 510-2195

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  KeyBank National Association

  
	
   

  	
  127 Public Square

  
	
   

  	
  Cleveland, Ohio 44114-1306

  
	
   

  	
  Attn: Real Estate Capital
  Services

  
	
   

  	
  Fax: (    )
              

  
						



 


70

















 


EXHIBIT A


 


FORM OF REVOLVING CREDIT NOTE


 


	
  No.     

  	
  [Date]

  
	
  [Amount]

  	
   

  



 


FOR VALUE RECEIVED, the
undersigned, AMERIVEST PROPERTIES INC., a Maryland corporation (the “Borrower”),
promises to pay, without offset or counterclaim,  to the order of [Name of Lender]
(hereinafter, together with its successors in title and assigns, called the “Lender”)
at the head office of KeyBank National Association, as Agent (the “Agent”) at
127 Public Square, Cleveland, Ohio 44114-1306 or at such other address as Agent
may specify, the principal sum of [Amount in Words][Amount in Numbers] or, if
less, the aggregate unpaid principal amount of all Loans made by the Lender to
the Borrower pursuant to the Second Amended and Restated Revolving Credit
Agreement dated as of January 23, 2006 among the Lender, the Borrower,  the other lending institutions named therein
and the Agent, as amended from time to time (the “Credit Agreement”).  Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Credit
Agreement.  Unless otherwise provided
herein, the rules of interpretation set forth in §1.2 of the Credit Agreement
shall be applicable to this Note.


 


The Borrower also promises to
pay (a) principal from time to time at the times provided in the Credit
Agreement and (b) interest from the date hereof on the principal amount from
time to time unpaid at the rates and times set forth in the Credit Agreement
and in all cases in accordance with the terms of the Credit Agreement.  Late charges and other charges and default
rate interest shall be paid by Borrower in accordance with the terms of the
Credit Agreement.  The entire outstanding
principal amount of this Note, together with all accrued but unpaid interest
thereon, shall be due and payable in full on the Maturity Date.  The Lender may endorse the record relating to
this Note with appropriate notations evidencing advances and payments of
principal hereunder as contemplated by the Credit Agreement.


 


This Note is issued pursuant
to, is entitled to the benefits of, and is subject to the provisions of the
Credit Agreement.  The principal of this
Note is subject to prepayment in whole or in part in the manner and to the
extent specified in the Credit Agreement. 
The principal of this Note, the interest accrued on this Note and all
other Obligations of the Borrower are full recourse obligations of the
Borrower, and all of its Real Estate Assets, and its other properties shall be
available for the payment and performance of this Note, the interest accrued on
this Note, and all of such other Obligations. 
In case an Event of Default shall occur and be continuing, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.


 


Notwithstanding anything in
this Note to the contrary, all agreements between the Borrower and the Lenders
and the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Lenders exceed the maximum
amount permissible under applicable law. 
If, from


 


A-1

















 


any
circumstance whatsoever, interest would otherwise by payable to the Lenders in
excess of the maximum lawful amount, the interest payable to the Lenders shall
be reduced to the maximum amount permitted under applicable law; and if from
any circumstance the Lenders shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. 
All interest paid or agreed to be paid to the Lenders shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law.  This
section shall control all agreements between the Borrower and the Lenders and
the Agent.


 


The Borrower and all endorsers
hereby waive presentment, demand, protest and notice of any kind in connection
with the delivery, acceptance, performance and enforcement of this Note, and
also hereby assent to extensions of time of payment or forbearance or other
indulgences without notice.


 


This Note
and the obligations of the Borrower hereunder shall be governed by and
interpreted and determined in accordance with the laws of the State of Georgia
(excluding the laws applicable to conflicts or choice of law).  The Borrower has waived its right to a jury
trial with respect to any action or claim arising out of this Note pursuant to
§24 of the Credit Agreement.


 


This Note is a note executed in
amendment and restatement of the “Notes” as defined in the First Amended Credit
Agreement.


 


IN WITNESS WHEREOF, the
Borrower has caused this Note to be duly executed in its name as an instrument
under seal on the date first above written.


 


	
  WITNESS:

  	
  AMERIVEST PROPERTIES INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (CORPORATE
  SEAL)

  
							



 


A-2

















 


EXHIBIT B


 


LOAN REQUEST


 


[Date]


 


KeyBank National Association,
as Agent

1200 Abernathy Road, Suite 1550

Atlanta, Georgia 30328


 


Re:                               Loan
Request under Second Amended and Restated Revolving Credit Agreement dated as
of January 23, 2006


 


Ladies and Gentlemen:


 


Pursuant to §2.5 of the Second
Amended and Restated Revolving Credit Agreement dated as of January 23, 2006,
among you, certain other Lenders and us (the “Credit Agreement”), we hereby
request that the Lenders make a Loan as follows:


 


(i)            Principal amount requested: $


 


(ii)           Proposed Borrowing Date:


 


(iii)          Interest Period:


 


(iv)          Type:


 


This Loan Request is submitted
pursuant to, and shall be governed by, and subject to satisfaction of, the
terms, conditions and provisions set forth in §2.5 of the Credit Agreement.


 


The undersigned hereby further
certifies to you that it is in compliance with the covenants specified in §9.1
through §9.6 of the Credit Agreement, and will remain in compliance with such
covenants after the making of the requested Loan, as evidenced by a Compliance
Certificate in the form of Exhibit C to the Credit Agreement of even
date herewith delivered to you simultaneously with this Loan Request.


 


We also understand that this request
obligates us to accept the requested Loan on such date. All terms defined in
the Credit Agreement and used herein without definition shall have the meanings
set forth in §1.1 of the Credit Agreement.


 


B-1

















 


The undersigned hereby
certifies to you, in accordance with the provisions of §11.1 of the Credit
Agreement, that the representations and warranties contained in the Credit
Agreement and in each document and instrument delivered pursuant to or in
connection therewith were true in all material respects as of the date as of
which they were made, are also true in all material respects at and as of the
date hereof, and will also be true in all material respects at and as of the
proposed Borrowing Date of the Loan requested hereby, in each case except as
otherwise permitted pursuant to the provisions of §11.1 of the Credit
Agreement, and no Default or Event of Default has occurred and is continuing.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  AMERIVEST PROPERTIES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
						



 


B-2

















 


EXHIBIT C


 


COMPLIANCE CERTIFICATE UNDER SECOND

AMENDED AND RESTATED REVOLVING CREDIT

AGREEMENT DATED AS OF JANUARY 23, 2006


 


The undersigned, a Responsible
Officer of AMERIVEST PROPERTIES INC. (the “Borrower”), hereby certifies on
behalf of the Borrower as of the date hereof the following:


 


1.             No Defaults. 
I have read a copy of the Second Amended and Restated Revolving Credit
Agreement dated as of January 23, 2006 (the “Credit Agreement”) among the
Borrower, KeyBank National Association, the other lending institutions party
thereto, and KeyBank National Association, as Agent. Terms used herein and not
otherwise defined herein shall have the meanings set forth in §1.1 of the
Credit Agreement. No Event of Default is continuing in the performance or
observance of any of the covenants, terms or provisions of the Credit Agreement
or any of the other Loan Documents.  Without
limiting the foregoing, the Borrower has not taken any actions which are
prohibited by the negative covenants set forth in §8 of the Credit
Agreement.  Attached hereto as Appendix
I are all relevant calculations needed to determine whether the Borrower is
in compliance with §9.1 through §9.6, inclusive, and §8.3(d) and §8.7 of the
Credit Agreement as of the end of the most recently completed fiscal quarter
(except that in the case of Compliance Certificates delivered pursuant to §2.5
or §8.4(c), the calculations determining compliance with §9.3 have been
computed on a pro forma basis after giving effect to the proposed transaction).


 


2.             No Material Changes, Etc.  Except as disclosed on Appendix II
hereto, since the [date of most recent financial statements furnished to the
Agent and the Lenders], there have occurred no materially adverse changes in
the financial condition or business of the Borrower as shown on or reflected in
the balance sheet of the Borrower as at such date other than (a) changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of the Borrower and (b) changes resulting from the making of the Loans and the
transactions contemplated by the Credit Agreement.


 


3.             No Materially Adverse Contracts, Etc.  The Borrower is not subject to any charter,
corporate, or other legal restriction, or any judgment, decree, order, rule or
regulation that has or is expected, in the reasonable judgment of the Borrower’s
officers, in the future to have a materially adverse effect on the
Borrower.  The Borrower is not a party to
any contract or agreement that has or is expected, in the reasonable judgment
of the Borrower ‘s officers, to have a materially adverse effect on the
Borrower.


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERIVEST PROPERTIES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
							



 


C-1

















 


AMERIVEST PROPERTIES


APPENDIX
I TO COVENANT COMPLIANCE CERTIFICATE

based on QE             


 


	
  CORPORATE
  COVENANTS

  
	
  (1)

  	
  Corporate Leverage
  (Section 9.3 in Credit Agreement)

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  Total Assets on Balance
  Sheet

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Real Estate Depreciation

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  GROSS ASSET VALUE (a+b)

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  Total Liabilities on
  Balance Sheet

  	
   

  	
   

  	
   

  
	
   

  	
  e.

  	
  Contingent Liabilities not
  already on B.S.

  	
   

  	
   

  	
   

  
	
   

  	
  f.

  	
  Borrower’s% of
  unconsolidated entity liabilities

  	
   

  	
   

  	
   

  
	
   

  	
  g.

  	
  TOTAL LIABILITIES as
  defined (d + e + f)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TOTAL LIABILITIES TO GAV:

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  (cannot
  exceed 65%)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
  Corporate Interest
  Coverage (Section 9.4 in Credit Agreement)

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  EBITDA (last 2 Quarters annualized)

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Company S.F.

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  Reserve Amount PSF

  	
   

  	
  $

  	
    0.25

  	
   

  
	
   

  	
  d.

  	
  Total Reserve (bxc)

  	
   

  	
  $

  	
    —

  	
   

  
	
   

  	
  e.

  	
  Adjusted EBITDA (a-d)

  	
   

  	
  $

  	
    —

  	
   

  
	
   

  	
  f.

  	
  Interest Expense

  	
   

  	
   

  	
   

  
	
   

  	
  g.

  	
  Capitalized Interest

  	
   

  	
   

  	
   

  
	
   

  	
  h.

  	
  Total Interest Exp. (g+h)

  	
   

  	
   

  	
   

  
	
   

  	
  i.

  	
  Adj. EBITDA to Int.Exp. (e/h)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (cannot
  be less than 1.50x)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
  Corporate Fixed Charge
  Coverage (Section 9.5 in Credit Agreement)

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  EBITDA last 2 Qtrs
  annualized (= 2a.)

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Interest Expense (= 2h.)

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  principal payments

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  preferred dividends

  	
   

  	
   

  	
   

  
	
   

  	
  e.

  	
  Fixed Charges (b + c + d)

  	
   

  	
   

  	
   

  
	
   

  	
  f.

  	
  EBITDA/Fixed Charges (a/e)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (cannot
  be less than 1.35x)

  	
   

  	
   

  	
   

  



 


C-2

















 


	
  (4)

  	
  Minimum Tangible Net Worth
  (Section 9.6 in Credit Agreement)

  
	
   

  	
  a.

  	
  GAV (= 1c.)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Intangible Assets

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  Total Liabilities (= 1d.)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  Tangible Net Worth (a-b-c)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (cannot
  be less than $75mm)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  (5)

  	
  Permitted Investments
  (Section 8.3(d) of Credit Agreement)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  Covenant*

  	
   

  	
  Actual

  	
   

  
	
   

  	
  a.

  	
  R.E. Assets that are not
  office bldgs or off. parks

  	
   

  	
  5%

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Unconsolidated Entities

  	
   

  	
  10%

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  Undeveloped Land

  	
   

  	
  5%

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  Mortgages and Notes
  Receivable

  	
   

  	
  5%

  	
   

  	
   

  	
   

  
	
   

  	
  e.

  	
  Total Investments

  	
   

  	
  n/a

  	
   

  	
   

  	
   

  
	
   

  	
  f.

  	
  MAXIMUM PERMITTED
  INVESTMENTS

  	
   

  	
  15%

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*  as a percent of GAV (= 1c)


 


	
  (6)

  	
  Total Distributions
  (Section 8.7 of Credit Agreement)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  distributions for 2005

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  cannot exceed lesser of $1,200,000 or minimum
  amount necessary to maintain REIT status

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  BORROWING BASE COVENANTS (Applicable from and after Revolving Credit
  Reinstatement Date)

  	
   

  	
   

  	
   

  



 


	
  (7)

  	
  Borrowing Base
  Value/Advance Rate (§9.1 of Revolving Credit Agreement)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  Property

  	
   

  	
  TOTAL

  	
   

  
	
   

  	
  a.

  	
  Appraised Value of
  Mortgaged Property

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  multiplied by

  	
   

  	
  65%

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  Availability based on
  Appraised Value

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
  ADVANCE RATE (7c.)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  (8)

  	
  Minimum Debt Service
  Coverage (§9.2 of Revolving Credit Agreement)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  NOI of mortgaged property
  last 6 mths

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  NOI annualized (* 2)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  Collateral Property s.f.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  Reserve Amount

  	
   

  	
  $

  	
   0.25

  	
   

  	
   

  	
   

  
	
   

  	
  e.

  	
  Collateral Reserve Amount

  	
   

  	
  $

  	
   —

  	
   

  	
   

  	
   

  
	
   

  	
  f.

  	
  Collateral Cash Flow (b-e)

  	
   

  	
  $

  	
   —

  	
   

  	
   

  	
   

  
	
   

  	
  g.

  	
  Proforma Principal Amt
  (Amt O/S at QE)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  h.

  	
  DS at a 7% constant

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i.

  	
  int. at 10yr T+2.5% + 25
  yr amort.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  j.

  	
  Proforma DS = the > of:
  6h. or 6i.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  k.

  	
  Collateral CF/Proforma DS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Collateral CF/Proforma DS cannot be less than 1.35x

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-3

















 


EXHIBIT D


 


FORM OF

ASSIGNMENT AND ACCEPTANCE


 


Dated


 


Reference is made to the Second
Amended and Restated Revolving Credit Agreement dated as of January 23, 2006
(as amended and in effect from time to time, the “Agreement”), among AmeriVest
Properties, Inc., a Maryland corporation (the “Borrower”), KeyBank National
Association, the other Lenders and KeyBank National Association as agent (the “Agent”)
for itself and the other Lenders. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Agreement.


 


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


 


1.             The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, as of the
Effective Date (as hereinafter defined) a portion of the Assignor’s rights and
obligations under the Agreement which relates to $                
of the Assignor’s Commitment and a Facility Percentage of      %
of all Loans outstanding as of the Effective Date.


 


2.             The Assignor (i) represents that as of the date hereof,
its Commitment (without giving effect to this Assignment or any other
assignments by Assignor effective on the Effective Date (the “Simultaneous
Assignments”)) is $                
and its Facility Percentage with respect thereto is   %, and the
outstanding balance of its Loans (unreduced by any assignments thereof pursuant
to this Assignment or the Simultaneous Assignments) is $                ;
(ii) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Agreement, the other
Loan Documents or any other instrument or document furnished pursuant thereto,
other than that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
of its Subsidiaries or any other person which may be primarily or secondarily
liable in respect of any of the Obligations or any of their obligations under
the Agreement or the other Loan Documents or any other instrument or document
delivered or executed pursuant thereto; (iv) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (v) represents
and warrants that to the best of Assignor’s knowledge no Event of Default has
occurred and is continuing on the date hereof; and (vi) attaches the $                
Note delivered to it under the Agreement and requests that the Borrower
exchange such Note for new Notes executed by Borrower and payable to each of
the Assignor and/or to the assignees pursuant to the Simultaneous Assignments
and the Assignee as follows:


 

















 


 


	
  Notes Payable to

  the Order of:

  	
   

  	
  Amount of Note

  
	
   

  	
   

  	
   

  
	
  [Name of
  Assignor or assignees pursuant

  Simultaneous Assignments]

  	
   

  	
  [$      )]

  
	
   

  	
   

  	
   

  
	
  [Name of Assignee]

  	
   

  	
  [$      )]

  



 


3.             The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Agreement, together with copies of the most
recent financial statements delivered pursuant to §§6.4 and 7.4 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(iii) agrees that it will, independently and without reliance upon the
Assignor, any other Lender or the Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions and review and analysis of the value of any Properties in
taking or not taking action under the Agreement; (iv) represents, warrants and
confirms that it is an Eligible Assignee; (v) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers as are
reasonably incidental thereto pursuant to the terms of the Agreement and the
other Loan Documents; and (vi) agrees that it will perform all the obligations
which by the terms of the Agreement are required to be performed by it as a
Lender in accordance with the terms of the Agreement.


 


4.             The effective date for this Assignment and Acceptance
shall be                 
(the “Effective Date”). Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance and recording in
the Register by the Agent.  This
Assignment and Acceptance may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, and all of which together shall constitute one
instrument. In proving this Assignment and Acceptance it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.


 


5.             Upon such acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder, and (ii) the Assignor shall, with respect
to that portion of its interest under the Agreement assigned hereunder
relinquish its rights and be released from its obligations under the Agreement.


 


6.             Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to the Effective Date by the Agent or
with respect to the making of this assignment directly between themselves.


 


7.             THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.


 

















 


IN WITNESS WHEREOF, intending
to be legally bound, each of the undersigned has caused this Assignment and
Acceptance to be executed on its behalf by its officer thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: