Exhibit 10.1


 


Loan Number: 1001287


 


	
  

  	
  EXECUTION VERSION

  



 


CREDIT AGREEMENT


 


Dated as of October 28, 2010,


 


by and among


 


GOVERNMENT PROPERTIES INCOME TRUST,


as
Borrower,


 


THE FINANCIAL INSTITUTIONS PARTY HERETO


AND THEIR ASSIGNEES UNDER SECTION 12.6.,


as
Lenders,


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as
Administrative Agent,


 


BANK OF AMERICA, N.A.,


as
Syndication Agent,


 


and


 


U.S. BANK NATIONAL ASSOCIATION,


REGIONS BANK


and


ROYAL BANK OF CANADA,


as
Documentation Agents


 


and


 


WELLS FARGO SECURITIES, LLC


and


BANC OF AMERICA SECURITIES LLC,


as
Joint Lead Arrangers and


Joint
Lead Bookrunners


 

















 


TABLE OF CONTENTS


 


	
  Article I.
  Definitions

  	
  1

  
	
   

  	
   

  
	
  Section 1.1. Definitions

  	
  1

  
	
  Section 1.2. General; References to Eastern
  Time

  	
  23

  
	
   

  	
   

  
	
  Article II.
  Credit Facility

  	
  24

  
	
   

  	
   

  
	
  Section 2.1. Revolving Loans

  	
  24

  
	
  Section 2.2. Letters of Credit

  	
  25

  
	
  Section 2.3. Swingline Loans

  	
  29

  
	
  Section 2.4. Rates and Payment of Interest on
  Loans

  	
  31

  
	
  Section 2.5. Number of Interest Periods

  	
  32

  
	
  Section 2.6. Repayment of Loans

  	
  32

  
	
  Section 2.7. Prepayments

  	
  32

  
	
  Section 2.8. Continuation

  	
  33

  
	
  Section 2.9. Conversion

  	
  33

  
	
  Section 2.10. Notes

  	
  34

  
	
  Section 2.11. Voluntary Reductions of the
  Commitment

  	
  34

  
	
  Section 2.12. Extension of Termination Date

  	
  35

  
	
  Section 2.13. Expiration Date of Letters of
  Credit Past Commitment Termination

  	
  35

  
	
  Section 2.14. Amount Limitations

  	
  35

  
	
  Section 2.15. Increase in Commitments

  	
  35

  
	
  Section 2.16. Funds Transfer Disbursements

  	
  36

  
	
   

  	
   

  
	
  Article III.
  Payments, Fees and Other General Provisions

  	
  37

  
	
   

  	
   

  
	
  Section 3.1. Payments

  	
  37

  
	
  Section 3.2. Pro Rata Treatment

  	
  38

  
	
  Section 3.3. Sharing of Payments, Etc.

  	
  39

  
	
  Section 3.4. Several Obligations

  	
  39

  
	
  Section 3.5. Fees

  	
  39

  
	
  Section 3.6. Computations

  	
  40

  
	
  Section 3.7. Usury

  	
  40

  
	
  Section 3.8. Statements of Account

  	
  41

  
	
  Section 3.9. Defaulting Lenders

  	
  41

  
	
  Section 3.10. Taxes; Foreign Lenders

  	
  44

  
	
   

  	
   

  
	
  Article IV.
  Yield Protection, Etc.

  	
  46

  
	
   

  	
   

  
	
  Section 4.1. Additional Costs; Capital
  Adequacy

  	
  46

  
	
  Section 4.2. Suspension of LIBOR Loans

  	
  47

  
	
  Section 4.3. Illegality

  	
  48

  
	
  Section 4.4. Compensation

  	
  48

  
	
  Section 4.5. Treatment of Affected Loans

  	
  49

  
	
  Section 4.6. Affected Lenders

  	
  49

  
	
  Section 4.7. Change of Lending Office

  	
  50

  
	
  Section 4.8. Assumptions Concerning Funding
  of LIBOR Loans

  	
  50

  
	
   

  	
   

  
	
  Article V.
  Conditions Precedent

  	
  50

  
	
   

  	
   

  
	
  Section 5.1. Initial Conditions Precedent

  	
  50

  
	
  Section 5.2. Conditions Precedent to All
  Loans and Letters of Credit

  	
  52

  



 


i

















 


	
  Article VI. Representations and Warranties

  	
  53

  
	
   

  	
   

  
	
  Section 6.1. Representations
  and Warranties

  	
  53

  
	
  Section 6.2. Survival of
  Representations and Warranties, Etc.

  	
  59

  
	
   

  	
   

  
	
  Article VII. Affirmative Covenants

  	
  59

  
	
   

  	
   

  
	
  Section 7.1. Preservation of
  Existence and Similar Matters

  	
  59

  
	
  Section 7.2. Compliance with
  Applicable Law and Material Contracts

  	
  60

  
	
  Section 7.3. Maintenance of
  Property

  	
  60

  
	
  Section 7.4. Conduct of
  Business

  	
  60

  
	
  Section 7.5. Insurance

  	
  60

  
	
  Section 7.6. Payment of
  Taxes and Claims

  	
  60

  
	
  Section 7.7. Books and
  Records; Inspections

  	
  60

  
	
  Section 7.8. Use of Proceeds

  	
  61

  
	
  Section 7.9. Environmental
  Matters

  	
  61

  
	
  Section 7.10. Further
  Assurances

  	
  61

  
	
  Section 7.11. REIT Status

  	
  62

  
	
  Section 7.12. Exchange
  Listing

  	
  62

  
	
  Section 7.13. Guarantors

  	
  62

  
	
   

  	
   

  
	
  Article VIII. Information

  	
  62

  
	
   

  	
   

  
	
  Section 8.1. Quarterly
  Financial Statements

  	
  63

  
	
  Section 8.2. Year-End
  Statements

  	
  63

  
	
  Section 8.3. Compliance
  Certificate

  	
  63

  
	
  Section 8.4. Other
  Information

  	
  64

  
	
  Section 8.5. Electronic
  Delivery of Certain Information

  	
  65

  
	
  Section 8.6. Public/Private
  Information

  	
  66

  
	
  Section 8.7. USA Patriot Act
  Notice; Compliance

  	
  66

  
	
   

  	
   

  
	
  Article IX. Negative Covenants

  	
  67

  
	
   

  	
   

  
	
  Section 9.1. Financial
  Covenants

  	
  67

  
	
  Section 9.2. Negative Pledge

  	
  68

  
	
  Section 9.3. Restrictions on
  Intercompany Transfers

  	
  69

  
	
  Section 9.4. Merger,
  Consolidation, Sales of Assets and Other Arrangements

  	
  69

  
	
  Section 9.5. Plans

  	
  69

  
	
  Section 9.6. Fiscal Year

  	
  70

  
	
  Section 9.7. Modifications
  of Organizational Documents and Material Contracts

  	
  70

  
	
  Section 9.8. Transactions
  with Affiliates

  	
  70

  
	
  Section 9.9. Environmental
  Matters

  	
  70

  
	
  Section 9.10. Derivatives
  Contracts

  	
  71

  
	
   

  	
   

  
	
  Article X. Default

  	
  71

  
	
   

  	
   

  
	
  Section 10.1. Events of
  Default

  	
  71

  
	
  Section 10.2. Remedies Upon
  Event of Default

  	
  74

  
	
  Section 10.3. Remedies Upon
  Default

  	
  75

  
	
  Section 10.4. Marshaling;
  Payments Set Aside

  	
  75

  
	
  Section 10.5. Allocation of
  Proceeds

  	
  76

  
	
  Section 10.6. Letter of
  Credit Collateral Account

  	
  76

  
	
  Section 10.7. Performance by
  Administrative Agent

  	
  77

  
	
  Section 10.8. Rights
  Cumulative

  	
  78

  



 


ii

















 


	
  Article XI. The Administrative Agent

  	
  78

  
	
   

  	
   

  
	
  Section 11.1. Appointment
  and Authorization

  	
  78

  
	
  Section 11.2. Wells Fargo as
  Lender

  	
  79

  
	
  Section 11.3. Approvals of
  Lenders

  	
  79

  
	
  Section 11.4. Notice of
  Events of Default

  	
  79

  
	
  Section 11.5. Administrative
  Agent’s Reliance

  	
  80

  
	
  Section 11.6.
  Indemnification of Administrative Agent

  	
  80

  
	
  Section 11.7. Lender Credit
  Decision, Etc.

  	
  81

  
	
  Section 11.8. Successor Administrative
  Agent

  	
  82

  
	
  Section 11.9. Titled Agents

  	
  82

  
	
   

  	
   

  
	
  Article XII. Miscellaneous

  	
  83

  
	
   

  	
   

  
	
  Section 12.1. Notices

  	
  83

  
	
  Section 12.2. Expenses

  	
  84

  
	
  Section 12.3.
  Stamp, Intangible and Recording Taxes

  	
  85

  
	
  Section 12.4. Setoff

  	
  85

  
	
  Section 12.5. Litigation; Jurisdiction;
  Other Matters; Waivers

  	
  86

  
	
  Section 12.6. Successors and
  Assigns

  	
  87

  
	
  Section 12.7. Amendments and
  Waivers

  	
  90

  
	
  Section 12.8. Nonliability
  of Administrative Agent and Lenders

  	
  91

  
	
  Section 12.9.
  Confidentiality

  	
  92

  
	
  Section 12.10.
  Indemnification

  	
  92

  
	
  Section 12.11. Termination;
  Survival

  	
  94

  
	
  Section 12.12. Severability
  of Provisions

  	
  95

  
	
  Section 12.13. GOVERNING LAW

  	
  95

  
	
  Section 12.14. Counterparts

  	
  95

  
	
  Section 12.15. Obligations
  with Respect to Loan Parties

  	
  95

  
	
  Section 12.16. Independence
  of Covenants

  	
  95

  
	
  Section 12.17. Limitation of
  Liability

  	
  95

  
	
  Section 12.18. Entire
  Agreement

  	
  96

  
	
  Section 12.19. Construction

  	
  96

  
	
  Section 12.20. Headings

  	
  96

  
	
  Section 12.21. LIABILITY OF
  TRUSTEES, ETC.

  	
  96

  



 


	
  SCHEDULE
  I

  	
  Commitments

  
	
  SCHEDULE
  1.1.

  	
  List
  of Loan Parties

  
	
  SCHEDULE
  6.1.(b)

  	
  Ownership
  Structure

  
	
  SCHEDULE
  6.1.(f)

  	
  Title
  to Properties; Liens

  
	
  SCHEDULE
  6.1.(g)

  	
  Indebtedness
  and Guaranties

  
	
  SCHEDULE
  6.1.(h)

  	
  Material
  Contracts

  
	
  SCHEDULE
  6.1.(i)

  	
  Litigation

  
	
  SCHEDULE
  6.1.(s)

  	
  Affiliate
  Transactions

  
	
  SCHEDULE
  6.1.(z)

  	
  Unencumbered
  Assets; Unencumbered Mortgage Notes

  



 


iii

















 


	
  EXHIBIT A

  	
   

  	
  Form of
  Assignment and Assumption Agreement

  
	
  EXHIBIT B

  	
   

  	
  Form of
  Guaranty

  
	
  EXHIBIT C

  	
   

  	
  Form of
  Notice of Borrowing

  
	
  EXHIBIT D

  	
   

  	
  Form of
  Notice of Continuation

  
	
  EXHIBIT E

  	
   

  	
  Form of
  Notice of Conversion

  
	
  EXHIBIT F

  	
   

  	
  Form of
  Notice of Swingline Borrowing

  
	
  EXHIBIT G

  	
   

  	
  Form of
  Revolving Note

  
	
  EXHIBIT H

  	
   

  	
  Form of
  Swingline Note

  
	
  EXHIBIT I

  	
   

  	
  Form of
  Transfer Authorizer Designation Form

  
	
  EXHIBIT J

  	
   

  	
  Form of
  Opinion of Counsel

  
	
  EXHIBIT K

  	
   

  	
  Form of
  Compliance Certificate

  



 


iv
















 


THIS
CREDIT AGREEMENT (this “Agreement”) dated as of October 28,
2010 by and among GOVERNMENT PROPERTIES INCOME TRUST, a real estate
investment trust organized under the laws of the State of Maryland (the “Borrower”),
each of the financial institutions initially a signatory hereto together with
their successors and assignees under Section 12.6. (the “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (the “Administrative Agent”), BANK OF AMERICA, N.A., as
Syndication Agent (the “Syndication Agent”), each of U.S. BANK NATIONAL
ASSOCIATION, REGIONS BANK and ROYAL BANK OF CANADA, as a Documentation Agent
(each a “Documentation Agent”), and each of WELLS FARGO SECURITIES, LLC and
BANC OF AMERICA SECURITIES LLC, as Joint Lead Arrangers and Joint Lead
Bookrunners (collectively, the “Lead Arrangers”).


 


WHEREAS,
the Administrative Agent, the Issuing Bank and the Lenders desire to make
available to the Borrower a revolving credit facility in the initial amount of
$500,000,000 which will include a $50,000,000 swingline subfacility and a
$35,000,000 letter of credit subfacility, on the terms and conditions contained
herein;


 


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


 


ARTICLE I. DEFINITIONS


 


Section 1.1.  Definitions.


 


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


 


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


 


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


 


“Adjusted EBITDA”  means, with
respect to any period of time, EBITDA of the Borrower and its Subsidiaries
determined on a consolidated basis for such period less Capital
Expenditures Reserves for all Properties for such period.


 


“Administrative Agent” means Wells Fargo
Bank, National Association as contractual representative of the Lenders under this
Agreement, or any successor Administrative Agent appointed pursuant to Section 11.8.


 


“Administrative Questionnaire” means the Administrative
Questionnaire completed by each Lender and delivered to the Administrative
Agent in a form supplied by the Administrative Agent to the Lenders from time
to time.


 


“Affiliate” means, with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.  In no event shall the
Administrative Agent or any Lender be deemed to be an Affiliate of the
Borrower.


 


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


 

















 


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


 


	
  Level

  	
   

  	
  Facility Fee

  	
   

  
	
  1

  	
   

  	
  0.30

  	
  %

  
	
  2

  	
   

  	
  0.35

  	
  %

  
	
  3

  	
   

  	
  0.40

  	
  %

  
	
  4

  	
   

  	
  0.45

  	
  %

  
	
  5

  	
   

  	
  0.50

  	
  %

  






Any
change in the applicable Level at which the Applicable Margin is determined
shall result in a corresponding and simultaneous change in the Applicable
Facility Fee. The provisions of this definition shall be subject to Section 2.4.(c).


 


“Applicable Law” means all international, foreign, federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes, executive orders, and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of
law.


 


“Applicable Margin” means the percentage rate set forth below
corresponding to the Level (each a “Level”) into which the Borrower’s Credit
Rating then falls.  As of the Agreement
Date, the Applicable Margin is determined based on Level 4.  Any change in the Borrower’s Credit Rating
which would cause it to move to a different Level shall be effective as of the
first day of the first calendar month immediately following receipt by the
Administrative Agent of written notice delivered by the Borrower in accordance
with Section 8.4.(m) that the Borrower’s Credit Rating has changed;
provided, however, if the Borrower has not delivered the notice required by
such Section but the Administrative Agent becomes aware that the Borrower’s
Credit Rating has changed, then the Administrative Agent may, in its sole
discretion, adjust the Level effective as of the first day of the first
calendar month following the date the Administrative Agent becomes aware that
the Borrower’s Credit Rating has changed. 
During any period that the Borrower has received two Credit Ratings that
are not equivalent, the Applicable Margin shall be determined based on the
Level corresponding to the higher of such two Credit Ratings.  During any period for which the Borrower has
received a Credit Rating from only one Rating Agency, then the Applicable
Margin shall be determined based on such Credit Rating.  During any period that the Borrower has not
received a Credit Rating from any Rating Agency, then the Applicable Margin
shall be determined based on Level 5.  
The provisions of this definition shall be subject to Section 2.4.(c).


 


	
  Level

  	
   

  	
  Borrower’s Credit

  Rating (S&P/Moody’s)

  	
   

  	
  Applicable Margin

  	
   

  
	
  1

  	
   

  	
  A-/A3
  or better

  	
   

  	
  1.75

  	
  %

  
	
  2

  	
   

  	
  BBB+/Baa1

  	
   

  	
  1.80

  	
  %

  
	
  3

  	
   

  	
  BBB/Baa2

  	
   

  	
  1.90

  	
  %

  
	
  4

  	
   

  	
  BBB-/Baa3

  	
   

  	
  2.10

  	
  %

  
	
  5

  	
   

  	
  Lower
  than BBB-/Baa3

  	
   

  	
  2.80

  	
  %

  



 


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


 


2

















 


“Asset Under Development” means, as of any date of
determination, any Property owned by the Borrower or any of its Subsidiaries on
which the construction of new income-producing improvements has been commenced
and is continuing, with both the land and the improvements under construction
thereon which comprise such Property to be valued at the fully-budgeted cost,
as determined in accordance with GAAP, except in connection with the
calculation of Total Asset Value, in which case it is to be valued as specified
in the definition thereof.  In the event
of construction of an addition or expansion to an existing income producing
Property, only the addition or expansion shall be considered an Asset Under
Development.


 


“Assignment and Assumption” means an
Assignment and Assumption Agreement among a Lender, an Eligible Assignee and
the Administrative Agent, substantially in the form of Exhibit A.


 


“Bankruptcy Code” means the Bankruptcy Code of 1978, as
amended.


 


“Base Rate” means the LIBOR Market Index Rate; provided, that
if for any reason the LIBOR Market Index Rate is unavailable, Base Rate shall
mean the per annum rate of interest equal to the Federal Funds Rate plus one
and one-half of one percent (1.50%).


 


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


 


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


 


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


 


“Borrower Information” has the meaning given that term in Section 2.4.(c).


 


“Business Day” means (a) a day of the week (but not a
Saturday, Sunday or holiday) on which the offices of the Administrative Agent
in San Francisco, California are open to the public for carrying on
substantially all of the Administrative Agent’s business functions, and (b) if
such day relates to a LIBOR Loan, any such day that is also a day on which
dealings in Dollars are carried on in the London interbank market.  Unless specifically referenced in this
Agreement as a Business Day, all references to “days” shall be to calendar
days.


 


“Business Management Agreement” means that certain Business
Management Agreement dated as of June 8, 2009 by and between the Borrower
and RMR.


 


“Canadian Property” means a Property located in Canada.


 


“Capital Expenditure Reserves” means, with respect to a
Property and for a given period, an amount equal to (a) the aggregate
rentable square footage of all completed space of such Property, times
(b) $0.50, times (c) the number of days in such period, divided
by (d) 365; provided, however that no Capital Expenditure Reserves
shall be required with respect to any portion of a Property which is leased to
a third party on a triple net basis.


 


“Capitalization Rate” means 8.50%.


 


“Capitalized Lease Obligation” means obligations under a
lease (to pay rent or other amounts under any lease or other arrangement
conveying the right to use) that are required to be capitalized for


 


3

















 


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


 


“Cash Equivalents” means: (a) securities issued,
guaranteed or insured by the United States of America or any of its agencies
with maturities of not more than one year from the date acquired;
(b) certificates of deposit with maturities of not more than one year from
the date acquired issued by a United States federal or state chartered
commercial bank of recognized standing, or a commercial bank organized under
the laws of any other country which is a member of the Organisation for
Economic Cooperation and Development, or a political subdivision of any such
country, acting through a branch or agency, which bank has capital and
unimpaired surplus in excess of $500,000,000 and which bank or its holding
company has a short-term commercial paper rating of at least A-2 or the
equivalent by S&P or at least P-2 or the equivalent by Moody’s;
(c) reverse repurchase agreements with terms of not more than seven days
from the date acquired, for securities of the type described in clause (a) above
and entered into only with commercial banks having the qualifications described
in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State
thereof and rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody’s, in each case with maturities of not
more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended,
which have net assets of at least $500,000,000 and at least 85% of whose assets
consist of securities and other obligations of the type described in
clauses (a) through (d) above.


 


“Commitment” means, as to each Lender (other than the
Swingline Lender), such Lender’s obligation to make Revolving Loans pursuant to
Section 2.1., to issue (in the case of the Issuing Bank) and to
participate (in the case of the other Lenders) in Letters of Credit pursuant to
Section 2.2.(i), and to participate in Swingline Loans pursuant to Section 2.3.(e),
in an amount up to, but not exceeding the amount set forth for such Lender on
Schedule I as such Lender’s “Commitment Amount” or as set forth in any
applicable Assignment and Assumption or agreement executed by a Lender becoming
a party hereto in accordance with Section 2.15., as the same may be
reduced from time to time pursuant to Section 2.11. or increased or
reduced as appropriate to reflect any assignments to or by such Lender effected
in accordance with Section 12.6. or increased as appropriate to reflect
any increase effected in accordance with Section 2.15.


 


“Commitment Percentage” means, as to each Lender, the ratio,
expressed as a percentage, of (a) the amount of such Lender’s Commitment
to (b) the aggregate amount of the Commitments of all Lenders hereunder;
provided, however, that if at the time of determination the Commitments have
been terminated or been reduced to zero, the “Commitment Percentage” of each
Lender shall be the “Commitment Percentage” of such Lender in effect
immediately prior to such termination or reduction.


 


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


 


“Continue”, “Continuation”
and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest
Period pursuant to Section 2.8.


 


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


 


“Convert”, “Conversion” and
“Converted” each refers to the
conversion of a Loan of one Type into a Loan of another Type pursuant to
Section 2.9.


 


4

















 


“Credit Event” means any of the following: (a) the
making (or deemed making) of any Loan, (b) the Conversion of a Base Rate
Loan into a LIBOR Loan, (c) the Continuation of a LIBOR Loan and
(d) the issuance of a Letter of Credit.


 


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


 


“Debt Service” means, for any period, the sum of:
(a) Interest Expense of the Borrower and its Subsidiaries determined on a
consolidated basis for such period and (b) all regularly scheduled
payments made with respect to Indebtedness of the Borrower and its Subsidiaries
during such period, other than any balloon, bullet or similar principal payment
which repays such Indebtedness in full.


 


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


 


“Defaulting Lender” means any Lender, as determined by the
Administrative Agent in good faith, that (a) has failed to fund (or has
failed, within 3 Business Days after request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its
obligations to fund) any portion of a Loan, participations in Letter of Credit
Liabilities under Section 2.2.(j) or participations in Swingline
Loans under Section 2.3.(e), in each case required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless such amount is the subject of a
good faith dispute, (c) has notified the Borrower, the Administrative Agent
or any other Lender in writing that, or has made a public statement to the
effect that, it does not intend to comply with any of its funding obligations
under this Agreement, or (d) has become or is (i) insolvent or
(ii) the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.


 


“Derivatives Contract” means (a) any transaction
(including any master agreement, confirmation or other agreement with respect
to any such transaction) now existing or hereafter entered into by the Borrower
or any of its Subsidiaries (i) which is a rate swap transaction, swap
option, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap, credit spread
transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, weather index
transaction or forward purchase or sale of a security, commodity or other
financial instrument or interest (including any option with respect to any of
these transactions) or (ii) which is a type of transaction that is similar
to any transaction referred to in clause (i) above that is currently, or
in the future becomes, recurrently entered into in the financial markets
(including terms and conditions incorporated by reference in such agreement)
and which is a forward, swap, future, option or other derivative on one or more
rates, currencies, commodities, equity securities or other equity instruments,
debt securities or other debt instruments, economic indices or measures of
economic risk or value, or other benchmarks against which payments or
deliveries are to be made, and (b) any combination of these transactions.


 


“Derivatives Termination Value” means, in respect of any one
or more Derivatives Contracts, after taking into account the effect of any
legally enforceable netting agreement or provision relating thereto, (a) for
any date on or after the date such Derivatives Contracts have been terminated
or closed


 


5

















 


out,
the termination amount or value determined in accordance therewith, and (b) for
any date prior to the date such Derivatives Contracts have been terminated or
closed out, the then-current mark-to-market value for such Derivatives
Contracts, determined based upon one or more mid-market quotations or estimates
provided by any recognized dealer in Derivatives Contracts (which may include
the Administrative Agent, any Lender, any Specified Derivatives Provider or any
Affiliate of any thereof).


 


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


 


“Domestic Property” means a Property located in a state of
the United States of America or in the District of Columbia.


 


“EBITDA”  means, with respect to a Person for a given
period and without duplication, the sum of (a) net income (or loss) of
such Person for such period determined on a consolidated basis exclusive  of the following (but only to the extent
included in the determination of such net income (loss) for such period):
(i) depreciation and amortization; (ii) interest expense;
(iii) income tax expense; and (iv) extraordinary or nonrecurring
items, including without limitation, gains and losses from the sale of
operating Properties (but not from the sale of Properties developed for the purpose
of sale); plus (b) such Person’s Ownership Share of EBITDA
of its Unconsolidated Affiliates.  Straight line rent leveling adjustments
required under GAAP and amortization of intangibles pursuant to FASB ASC 805
shall be disregarded in the determination of EBITDA (to the extent such
adjustments would otherwise have been included in the determination of
EBITDA).  For purposes of this
definition, nonrecurring items shall be deemed to include (x) gains and losses
on early extinguishment of Indebtedness, (y) non-cash severance and other
non-cash restructuring charges and (z) transaction costs of acquisitions
not permitted to be capitalized pursuant to GAAP.


 


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


 


“Eligible Assignee” means (a) a Lender, (b) an
Affiliate of a Lender, (c) an Approved Fund and (d) any other Person
(other than a natural person) approved by the Administrative Agent  (such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.


 


“Eligible Tenant” means a tenant that is (a) the federal
government of the United States of America or Canada (or any agency or
authority thereof), (b) a state, provincial or municipal government (or
any agency or authority thereof) located in the United States of America, Puerto
Rico, Guam, the U.S. Virgin Islands or Canada that has a minimum general
obligation credit rating of A- from S&P and A3 from Moody’s, or (c) any
other tenant approved by the Administrative Agent.


 


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


 


6

















 


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


 


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


 


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


 


“ERISA Event” means, with respect to the ERISA Group,
(a) any “reportable event” as defined in Section 4043 of ERISA with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the withdrawal of a member of the ERISA Group from a Plan
subject to Section 4063 of ERISA during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) the incurrence by a member of the ERISA Group of any liability
with respect to the withdrawal or partial withdrawal from any Multiemployer
Plan; (d) the incurrence by any member of the ERISA Group of any liability
under Title IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the institution of proceedings to terminate a Plan
or Multiemployer Plan by the PBGC; (f) the failure by any member of the
ERISA Group to make when due required contributions to a Multiemployer Plan or
Plan unless such failure is cured within 30 days or the filing pursuant to
Section 412(c) of the Internal Revenue Code or Section 302(c) of
ERISA of an application for a waiver of the minimum funding standard;
(g) any other event or condition that might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or Multiemployer Plan or
the imposition of liability under Section 4069 or 4212(c) of ERISA;
(h) the receipt by any member of the ERISA Group of any notice or the  receipt by any Multiemployer Plan from any
member of the ERISA Group of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent (within the meaning of Section 4245 of ERISA),
in reorganization (within the meaning of Section 4241 of ERISA), or in “critical”
status (within the meaning of Section 432 of the Internal Revenue Code or
Section 305 of ERISA); (i)  the imposition of any liability under
Title IV of ERISA, other  than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any
member of the ERISA Group or the imposition of any Lien in favor of the PBGC
under Title IV of ERISA; or (j) a determination that a Plan is, or is
reasonably expected to be, in “at risk” status (within the meaning of
Section 430 of the Internal Revenue Code or Section 303 of ERISA).


 


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


 


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


 


7

















 


“Excluded Subsidiary” means any Subsidiary (a) which
holds title to assets which are or are to become collateral for any Secured
Indebtedness of such Subsidiary, is an owner of the Equity Interests of a
Subsidiary holding title to such assets (but has no assets other than such
Equity Interests and other assets of nominal value incidental thereto), or is
required to be a single purpose entity in connection with any Secured
Indebtedness and (b) which is prohibited from Guarantying the Indebtedness
of any other Person pursuant to (i) any document, instrument or agreement
evidencing such Secured Indebtedness, or (ii) a provision of such
Subsidiary’s organizational documents which provision was included in such
Subsidiary’s organizational documents as a condition to the extension of such
Secured Indebtedness.


 


“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on
or measured by its assets, net income (however denominated) or receipts, and
franchise taxes imposed on it by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which such Lender is located, (c) in the case of a Foreign
Lender (other than an Assignee pursuant to a request by the Borrower under
Section 4.6.), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Regulatory Change) to comply
with Section 3.10.(c), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new Lending
Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.10.(a), and (d) any
taxes imposed by Sections 1471 through Section 1474 of the Internal
Revenue Code (including any official interpretations thereof, collectively “FATCA”)
on any “withholdable payment” payable to such recipient as a result of the
failure of such recipient to satisfy the applicable requirements as set forth
in FATCA after December 31, 2012.


 


“Existing Credit Agreement” means that certain Credit
Agreement dated as of April 24, 2009, by and among the Borrower,
Government Properties Income Trust LLC, the financial institutions party
thereto, Bank of America, N.A., as administrative agent, and the other parties
thereto.


 


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


 


“FASB ASC” means the Accounting Standards Codification of the
Financial Accounting Standards Board.


 


“Federal Funds Rate” means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal Funds brokers of recognized standing selected by the
Administrative Agent.


 


8

















 


“Fee Letter” means that certain fee letter dated as of September 2,
2010, by and among the Borrower, the Administrative Agent and the Lead
Arrangers.


 


“Fees” means the fees and commissions provided for or
referred to in Section 3.5. and any other fees payable by the Borrower
hereunder, under any other Loan Document or under the Fee Letter.


 


“Fixed Charges”  means, for any
period, the sum (without duplication) of (a) Debt Service for such period
and (b) Preferred Dividends for such period.


 


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


 


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


 


“Funds From Operations” means, for any period, net income
available for common shareholders of the Borrower for such period determined on
a consolidated basis, exclusive of the following (to the extent included in the
determination of such net income): (a) depreciation and amortization; (b) gains
and losses from extraordinary or non-recurring items; (c) gains and losses
on sales of real estate; (d) gains and losses on investments in marketable
securities; and (e) provisions/benefits for income taxes for such period.


 


“GAAP” means generally accepted accounting principles in the
United States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (including Statement of Financial Accounting Standards No. 168,
“The FASB Accounting Standards Codification”) or in such other statements by
such other entity as may be approved by a significant segment of the accounting
profession in the United States of America, which are applicable to the
circumstances as of the date of determination.


 


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


 


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


 


“Guarantor” means any Person that is party to the Guaranty as
a “Guarantor” and shall in any event include each Material Subsidiary (unless
an Excluded Subsidiary).


 


“Guaranty”, “Guaranteed” or
to “Guarantee” as applied to any obligation
means and includes:  (a) a guaranty
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in any manner, of any
part or all of such obligation, or (b) an agreement, direct or indirect,
contingent or otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or performance (or payment
of damages in the event of


 


9

















 


nonperformance)
of any part or all of such obligation whether by: (i) the purchase of
securities or obligations, (ii) the purchase, sale or lease (as lessee or
lessor) of property or the purchase or sale of services primarily for the
purpose of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of nonperformance)
of or on account of any part or all of such obligation, or to assure the owner
of such obligation against loss, (iii) the supplying of funds to or in any
other manner investing in the obligor with respect to such obligation, (iv) repayment
of amounts drawn down by beneficiaries of letters of credit (including Letters
of Credit), or (v) the supplying of funds to or investing in a Person on
account of all or any part of such Person’s obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in any way, such Person against
any part or all of such obligation.  As
the context requires, “Guaranty” shall also mean the guaranty executed and
delivered pursuant to Section 5.1. or 7.13. and substantially in the form
of Exhibit B.


 


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


 


“Indebtedness” means, with respect to a Person, at the time
of computation thereof, all of the following (without duplication):
(a) all obligations of such Person (including Subordinated Debt) in
respect of money borrowed; (b) all obligations of such Person, whether or
not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit, (ii) evidenced
by bonds, debentures, notes or similar instruments, or (iii) constituting purchase
money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property or for services rendered; (c) Capitalized Lease Obligations of
such Person; (d) all reimbursement obligations (contingent or otherwise)
of such Person under or in respect of any letters of credit or acceptances
(whether or not the same have been presented for payment); (e) all
obligations, contingent or otherwise, of such Person under any synthetic lease,
tax retention operating lease, off balance sheet loan or similar off balance
sheet financing arrangement if the transaction giving rise to such obligation
(i) is considered indebtedness for borrowed money for tax purposes but is
classified as an operating lease under GAAP and (ii) does not (and is not
required to pursuant to GAAP) appear as a liability on the balance sheet of
such Person; (f) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Mandatorily
Redeemable Stock issued by such Person or any other Person, valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; (g) all obligations of such Person in respect of any
purchase obligation, repurchase obligation, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding any
such obligation to the extent the obligation can be satisfied by the issuance
of Equity Interests (other than Mandatorily Redeemable Stock)); (h) all
Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person; (i) all Indebtedness of another Person secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien (other than Permitted Liens of the
types described in clauses (a) through (c) or (e) through (i) of
the definition thereof) on property or assets owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness or other payment obligation, valued, in the case of any such
Indebtedness as to which


 


10

















 


recourse
for the payment thereof is expressly limited to the property or assets on which
such Lien is granted, at the lesser of (x) the stated or determinable
amount of the Indebtedness that is so secured or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) and (y) the Fair
Market Value of such property or assets; and (j) such Person’s Ownership
Share of the Indebtedness of any Unconsolidated Affiliate of such Person.


 


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


 


“Interest Expense”  means, with
respect to a Person for any period of time, (a) the interest expense,
whether paid, accrued or capitalized (without deduction of consolidated
interest income) of such Person for such period plus (b) in the case of
the Borrower, the Borrower’s Ownership Share of Interest Expense of its
Unconsolidated Affiliates.  Interest
Expense shall exclude any amortization of (i) deferred financing fees and (ii) debt
discounts (but only to the extent such discounts do not exceed 3.0% of the
initial face principal amount of such debt).


 


“Interest Period” means, with respect to each LIBOR Loan,
each period commencing on the date such LIBOR Loan is made, or in the case of
the Continuation of a LIBOR Loan the last day of the preceding Interest Period
for such Loan, and ending 7 days thereafter or on the numerically corresponding
day in the first, third or sixth calendar month thereafter, as the Borrower may
select in a Notice of Borrowing, Notice of Continuation or Notice of
Conversion, as the case may be, except that each Interest Period (other than an
Interest Period having a duration of 7 days) that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month.  Notwithstanding the foregoing:
(i) if any Interest Period would otherwise end after the Termination Date,
such Interest Period shall end on the Termination Date; and (ii) each
Interest Period that would otherwise end on a day which is not a Business Day
shall end on the immediately following Business Day (or, if such immediately
following Business Day falls in the next calendar month, on the immediately
preceding Business Day).


 


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


 


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


 


“Issuing Bank” means Wells Fargo in its capacity as the
issuer of Letters of Credit pursuant to Section 2.2.


 


“L/C Commitment Amount” has the meaning given to that term in
Section 2.2.(a).


 


11
















 


“Lender” means each financial institution from time to time
party hereto as a “Lender,” together with its respective successors and
permitted assigns, and, as the context requires, includes the Swingline Lender;
provided, however, that the term “Lender,” except as otherwise expressly
provided herein, shall exclude any Lender (or its Affiliates) in its capacity
as a Specified Derivatives Provider.


 


“Lending Office” means, for each Lender and for each Type of
Loan, the office of such Lender specified in such Lender’s Administrative
Questionnaire or in the applicable Assignment and Assumption, or such other
office of such Lender as such Lender may notify the Administrative Agent in
writing from time to time.


 


“Letter of Credit” has the meaning given that term in
Section 2.2.(a).


 


“Letter of Credit Collateral Account” means a special deposit
account maintained by the Administrative Agent, for the benefit of the Lenders
and the Issuing Bank, and under its sole dominion and control.


 


“Letter of Credit Documents” means, with respect to any
Letter of Credit, collectively, any application therefor, any certificate or
other document presented in connection with a drawing under such Letter of
Credit and any other agreement, instrument or other document governing or providing
for (a) the rights and obligations of the parties concerned or at risk
with respect to such Letter of Credit or (b) any collateral security for
any of such obligations.


 


“Letter of Credit Liabilities” means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit.  For purposes of this Agreement, a Lender
(other than the Lender then acting as the Issuing Bank) shall be deemed to hold
a Letter of Credit Liability in an amount equal to its participation interest
under Section 2.2. in the related Letter of Credit, and the Lender then
acting as the Issuing Bank shall be deemed to hold a Letter of Credit Liability
in an amount equal to its retained interest in the related Letter of Credit
after giving effect to the acquisition by the Lenders (other than the Lender
then acting as the Issuing Bank) of their participation interests under such
Section.


 


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


 


“LIBOR” means, for the Interest Period for any LIBOR Loan,
the rate of interest, rounded up to the nearest whole multiple of one-hundredth
of one percent (0.01%), obtained by dividing (i) the rate of interest,
rounded upward to the nearest whole multiple of one-hundredth of one percent
(0.01%), referred to as the BBA (British Bankers’ Association) LIBOR rate as
set forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers’ Association as an authorized information
vendor for the purpose of displaying such rate for deposits in Dollars at
approximately 10:00 a.m. Eastern time, two (2) Business Days prior to
the date of commencement of such Interest Period for purposes of calculating
effective rates of interest for loans or obligations making reference thereto,
for an amount approximately equal to the applicable LIBOR Loan and for a period
of time approximately equal to such Interest Period by (ii) a
percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as
specified in Regulation D of the Board of Governors of the Federal Reserve
System (or against any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined or any
applicable category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the


 


12

















 


United
States of America).  Any change in such
maximum rate shall result in a change in LIBOR on the date on which such change
in such maximum rate becomes effective.


 


“LIBOR Loan” means a Revolving Loan (other than a Base Rate
Loan) bearing interest at a rate based on LIBOR.


 


“LIBOR Market Index Rate” means, for any
day, LIBOR as of that day that would be applicable for a LIBOR Loan having a
one-month Interest Period determined at approximately 10:00 a.m. Eastern
time for such day (or if such day is not a Business Day, the immediately
preceding Business Day).  The LIBOR
Market Index Rate shall be determined on a daily basis.


 


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


 


“Loan” means a Revolving Loan or a Swingline Loan.


 


“Loan Document” means this Agreement, each Note, each Letter
of Credit Document and each other document or instrument now or hereafter executed
and delivered by a Loan Party in connection with, pursuant to or relating to
this Agreement (other than the Fee Letter and any Specified Derivatives
Contract).


 


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


 


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


 


13

















 


“Marketable Securities” means (a) bank deposits and
certificates of deposit from a bank rated Baa1 or BBB+ or better by a Rating
Agency; (b) government obligations; and (c) commercial paper rated A1
or P1 by a Rating Agency.


 


“Material Adverse Effect” means a materially adverse effect
on (a) the business, assets, liabilities, financial condition, results of
operations or business prospects of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of the Borrower or any other Loan Party to
perform its obligations under any Loan Document to which it is a party,
(c) the validity or enforceability of any of the Loan Documents,
(d) the rights and remedies of the Lenders, the Issuing Bank and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith or the timely payment of all Reimbursement Obligations.


 


“Material Contract” means any contract or other arrangement
(other than Loan Documents and Specified Derivatives Contracts), whether
written or oral, to which the Borrower, any Subsidiary or any other Loan Party
is a party as to which the breach, nonperformance, cancellation or failure to
renew by any party thereto could reasonably be expected to have a Material
Adverse Effect, and in any event shall include the Business Management
Agreement and the Property Management Agreement with respect to the Borrower.


 


“Material Subsidiary”  means any
Subsidiary to which 2.0% or more of Total Asset Value is, directly or
indirectly, attributable.


 


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


 


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


 


“Mortgage Receivable” means a promissory
note secured by a Mortgage of which the Borrower or a Subsidiary is the holder
and retains the rights of collection of all payments thereunder.


 


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


 


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


 


“Net Operating Income” means, with respect to a Property and
for a given period, the sum of the following (without duplication):
(a) rents and other revenues received in the ordinary course from the
leasing or operating of such Property (including proceeds of rent loss
insurance but excluding pre-paid rents and revenues and security deposits
except to the extent applied in satisfaction of tenants’ obligations for rent) minus
(b) all expenses paid or accrued by the Borrower or a Subsidiary related
to the ownership, operation or maintenance of such Property, including but not
limited to taxes, assessments and other


 


14

















 


similar
charges, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, on-site marketing expenses and property management fees
equal to the greater of (i) actual property management fees or (ii) three
percent (3.0%) of the total gross revenues for such Property for such period,
but in any event excluding general and administrative expenses of the Borrower
and its Subsidiaries, minus (c) Capital Expenditures Reserves with
respect to such Property for such period. 
Straight line rent leveling adjustments required under GAAP, and
amortization of intangibles pursuant to FASB ASC 805, shall be disregarded in determinations of rents and other
revenues in (a) above. 
Notwithstanding the foregoing, the following rents shall be excluded
from the calculation of Net Operating Income: rents in arrears with respect to
any required minimum base rental payment required under an applicable lease (“Minimum
Base Rents”) that are received beyond the later of (i) any applicable
grace period with respect to such Minimum Base Rents and (ii) 90 days (or
in the case of an Eligible Tenant that has sought a furloughed payment and will
be compensating the landlord with interest in addition to rent due and is not
subject to any then continuing bankruptcy proceeding or other proceeding or condition
of the types described in Sections 10.1.(e) and 10.1.(f). that are
received beyond the later of (x) any applicable grace period with respect
to such Minimum Base Rents and (y) one year).


 


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


 


“Net Worth” means, with respect to any Person, such Person’s
total shareholder’s equity (including capital stock, additional paid-in capital
and retained earnings, after deducting treasury stock) which would appear as
such on a balance sheet of such Person prepared in accordance with GAAP.


 


“Non-Defaulting Lender” means any Lender that is not a
Defaulting Lender or Potential Defaulting Lender.


 


“Non-Government Property” means a Property that is less than
majority leased (calculated by square feet) to an Eligible Tenant.


 


“Nonrecourse Indebtedness” means, with respect to a Person, Indebtedness
for borrowed money in respect of which recourse for payment (except for
customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other similar
exceptions to nonrecourse liability) is contractually limited to
specific assets of such Person encumbered by a Lien securing such Indebtedness.


 


“Note” means a Revolving Note or a Swingline Note.


 


“Notice of Borrowing” means a notice substantially in the
form of Exhibit C (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing
the Borrower’s request for a borrowing of Revolving Loans.


 


“Notice of Continuation” means a notice substantially in the
form of Exhibit D (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.8.
evidencing the Borrower’s request for the Continuation of a LIBOR Loan.


 


15

















 


“Notice of Conversion” means a notice substantially in the
form of Exhibit E (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.9.
evidencing the Borrower’s request for the Conversion of a Loan from one Type to
another Type.


 


“Notice of Swingline Borrowing” means a notice substantially
in the form of Exhibit F (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Swingline Lender pursuant to Section 2.3.(b) evidencing
the Borrower’s request for a Swingline Loan.


 


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


 


“OFAC” has the meaning given that term in
Section 6.1.(y).


 


“Ownership Share” means, with respect to any Subsidiary of a
Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate
of a Person, the greater of (a) such Person’s relative nominal direct and
indirect ownership interest (expressed as a percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) subject to compliance with
Section 8.4.(l), such Person’s relative direct and indirect economic
interest (calculated as a percentage) in such Subsidiary or Unconsolidated
Affiliate determined in accordance with the applicable provisions of the
declaration of trust, articles or certificate of incorporation, articles of
organization, partnership agreement, joint venture agreement or other
applicable organizational document of such Subsidiary or Unconsolidated Affiliate.


 


“Participant” has the meaning given that term in
Section 12.6.(d).


 


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


 


“Permitted Liens” means, as to any Person: (a) Liens
securing taxes, assessments and other charges or levies imposed by any
Governmental Authority (excluding any Lien imposed pursuant to any of the
provisions of ERISA) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not at the time required to
be paid or discharged under Section 7.6. or (ii) if such Lien is the responsibility of a
financially responsible tenant, mortgagor or manager to discharge;
(b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under
workers’ compensation, unemployment insurance or similar Applicable Laws;
(c) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person and, in the case of the Borrower or
any Subsidiary, Liens granted by any tenant on its leasehold estate in a
Property which are subordinate to the interest of the Borrower or a Subsidiary
in such Property; (d) Liens in existence as of the Agreement Date and set
forth in Part II of Schedule 6.1.(f);
(e) deposits to secure trade contracts (other than for Indebtedness),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(f) the lessor’s interest in property leased to the Borrower or any of its
Subsidiaries


 


16

















 


pursuant
to a lease permitted by this Agreement; (g) the interests of tenants,
operators or managers of Properties; (h) Liens in favor of the Agent for
the benefit of the Lenders, the Issuing Bank and the Specified Derivatives
Providers; and (i) Liens which are also secured by restricted cash or Cash
Equivalents of equal or greater value.


 


“Person” means any natural person, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, limited liability partnership, joint venture, association, company,
trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, or any other nongovernmental entity, or any
Governmental Authority.


 


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


 


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


 


“Potential
Defaulting Lender” means any Lender, as
reasonably determined by the Administrative Agent, the Swingline Lender or the
Issuing Bank, as applicable, that: (a) has failed to comply with, or has
made a public statement to the effect that it does not intend to comply with,
its funding obligations under one or more syndicated credit facilities or other
agreements in which it commits or is obligated to extend credit (other than
this Agreement); (b)  has a parent corporation or other Affiliate that is
subject to any condition or event described in the immediately preceding
clause (a); or (c) has, or whose parent corporation has, a Credit
Rating of less than BBB-/Baa3 (or equivalent) from either S&P or Moody’s.  As used in this definition, the term “parent
corporation” means, with respect to a Lender, any Person Controlling such
Lender, including without limitation, the bank holding company (as defined in
Regulation Y of the Board of Governors of the Federal Reserve System), if
any, of such Lender.


 


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


 


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


 


“Principal Office” means the office of the
Administrative Agent located at NorthStar East Building, MAC: N9303-110, 608
Second Avenue S., Minneapolis, Minnesota 55402, or any other subsequent office
that the Administrative Agent shall have specified as the Principal Office by
written notice to the Borrower and the Lenders.


 


17

















 


“Property” means any parcel of real property owned or leased
(in whole or in part) or operated by the Borrower or any Subsidiary.


 


“Property EBITDA” means, with respect to a Property and for a
given period, the sum of the following (without duplication): (a) rents
and other revenues received in the ordinary course from the leasing or
operating of such Property (including proceeds of rent loss insurance but
excluding pre-paid rents and revenues and security deposits except to the
extent applied in satisfaction of tenants’ obligations for rent) minus
(b) all expenses paid or accrued by the Borrower or a Subsidiary related
to the ownership, operation or maintenance of such Property, including but not
limited to taxes, assessments and other similar charges, insurance, utilities,
payroll costs, maintenance, repair and landscaping expenses, on-site marketing
expenses, the Capital Expenditure Reserves for such Property as of the end of
such period and property management fees equal to the greater of
(i) actual property management fees or (ii) three percent (3.0%) of
the total gross revenues for such Property for such period, but in any event
excluding general and administrative expenses of the Borrower and its
Subsidiaries.  Straight line rent
leveling adjustments required under GAAP and amortization of intangibles
pursuant to FASB ASC 805 shall be disregarded in the determination of Property
EBITDA.


 


“Property Management Agreement” means that certain Amended
and Restated Property Management Agreement dated as of June 8, 2009 by and
between RMR and the Borrower, on behalf of itself and its Subsidiaries.


 


“Qualified Plan” means a Benefit Arrangement that is intended
to be tax-qualified under Section 401(a) of the Internal Revenue
Code.


 


“Rating Agency” means S&P, Moody’s or any other
nationally recognized securities rating agency selected by the Borrower and
approved of by the Administrative Agent in writing.


 


“Register” has the meaning given that term in
Section 12.6.(c).


 


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


 


“Reimbursement Obligation” means the absolute, unconditional
and irrevocable obligation of the Borrower to reimburse the Issuing Bank for
any drawing honored by the Issuing Bank under a Letter of Credit.


 


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


 


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


 


“Requisite Lenders” means, as of any date,
(a) Lenders having more than 50% of the aggregate amount of the
Commitments of all Lenders or (b) if the Commitments have been terminated
or reduced to


 


18

















 


zero,
Lenders holding more than 50% of the principal amount of the aggregate
outstanding Loans and Letter of Credit Liabilities; provided, that (i) in
determining such percentage at any given time, all then existing Defaulting
Lenders will be disregarded and excluded, and (ii) at all times when two
or more Lenders (excluding Defaulting Lenders) are party to this Agreement, the
term “Requisite Lenders” shall in no event mean less than two Lenders.  For purposes of this definition, a Lender
shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the
extent such Lender has acquired a participation therein under the terms of this
Agreement and has not failed to perform its obligations in respect of such
participation.


 


“Responsible Officer” means (a) with respect to the
Borrower, the Borrower’s President or Treasurer or any Managing Trustee of the
Borrower and (b) with respect to any other Loan Party, such Loan Party’s
chief executive officer or chief financial officer.


 


“Restricted Payment” means: (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock or other Equity Interest of the Borrower or any of its Subsidiaries now
or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class; (b) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of
stock or other Equity Interest of the Borrower or any of its Subsidiaries now
or hereafter outstanding; and (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire
any Equity Interests of the Borrower or any of its Subsidiaries now or hereafter
outstanding.


 


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


 


“Revolving Note” means a promissory note of
the Borrower substantially in the form of Exhibit G, payable to the order
of a Lender in a principal amount equal to the amount of such Lender’s
Commitment.


 


“RMR” means Reit Management & Research LLC, together
with its successors and permitted assigns.


 


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


 


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


 


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


 


“Specified Derivatives Contract” means any Derivatives
Contract that is made or entered into at any time, or in effect at any time now
or hereafter, whether as a result of an assignment or transfer or otherwise,
between the Borrower or any Subsidiary of the Borrower and any Specified
Derivatives Provider.


 


19

















 


“Specified Derivatives Obligations” means all indebtedness,
liabilities, obligations, covenants and duties of the Borrower or its
Subsidiaries under or in respect of any Specified Derivatives Contract, whether
direct or indirect, absolute or contingent, due or not due, liquidated or
unliquidated, and whether or not evidenced by any written confirmation.


 


“Specified Derivatives Provider” means any party to a
Derivatives Contract that is a Lender, or any Affiliate of a Lender, at the
time such Derivatives Contract is entered into.


 


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


 


“Stated Amount” means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may be
increased or reduced from time to time in accordance with the terms of such
Letter of Credit.


 


“Subordinated Debt” means Indebtedness for money borrowed of
the Borrower or any of its Subsidiaries that is subordinated in right of
payment and otherwise to the Loans, the other Obligations and the Specified
Derivatives Obligations, if any.


 


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


 


“Swingline Commitment” means the Swingline Lender’s
obligation to make Swingline Loans pursuant to Section 2.3.  in an amount up to, but not exceeding the
amount set forth in the first sentence of Section 2.3.(a), as such amount
may be reduced from time to time in accordance with the terms hereof.


 


“Swingline Lender” means Wells Fargo Bank, National
Association, together with its respective successors and assigns.


 


“Swingline Loan” means a loan made by the Swingline Lender to
the Borrower pursuant to Section 2.3.


 


“Swingline Maturity Date” means the date
which is seven (7) Business
Days prior to the Termination Date.


 


“Swingline Note” means the promissory note
of the Borrower substantially in the form of Exhibit H, payable to the
order of the Swingline Lender in a principal amount equal to the amount of the
Swingline Commitment as originally in effect and otherwise duly completed.


 


“Tangible Net Worth” means, as of any given time:
(a) the unallocated gross book value (exclusive of depreciation and
amortization) of all real estate assets of the Borrower and its Subsidiaries
that constitute Properties at such time; plus (b) the book value of
other assets (excluding any real estate assets) of the Borrower and its
Subsidiaries; less (c) all amounts appearing on the assets side of
a consolidated balance sheet of the Borrower for assets separately classified
as intangible assets under


 


20

















 


GAAP
(except for allocations of property
purchase prices pursuant to Statement of Financial Accounting Standards
number 141 and the like); less (d) Total Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis.


 


“Taxes” has the meaning given that term in Section 3.10.


 


“Termination Date” means October 28, 2013, or such later
date to which the Termination Date may be extended pursuant to
Section 2.12.


 


“Total Asset Value” means the sum of the following (without
duplication) of the Borrower and its Subsidiaries for the fiscal quarter most
recently ended: (a)(i) Property EBITDA determined on a consolidated basis
for such fiscal quarter and which is attributable to the Properties of the
Borrower and its Subsidiaries (excluding Property EBITDA attributable to
Properties either acquired or disposed of during such fiscal quarter) times
(ii) 4 and divided by (iii) the Capitalization Rate;
(b) the purchase price paid for any Property acquired during such fiscal
quarter (less any amounts paid as a purchase price adjustment, held in escrow,
retained as a contingency reserve, or other similar arrangements and prior to
allocations of property purchase prices pursuant to Statement of Financial
Accounting Standards number 141 and the like); (c)  all Marketable
Securities, cash and cash equivalents; (d) accounts receivable that are
not (i) owing in excess of 90 days (or in the case of an Eligible Tenant
that has sought a furloughed payment and will be compensating the landlord with
interest in addition to rent due and is not subject to any then continuing
bankruptcy proceeding or other proceeding or condition of the types described
in Sections 10.1.(e) and 10.1.(f), owing in excess of one year) as of
the end of such fiscal quarter, or (ii) being contested in writing by the
obligor in respect thereof (in which case only such portion being contested
shall be excluded from Total Asset Value); (e) prepaid taxes and operating
expenses as of the end of such fiscal quarter; (f) the book value of all
Assets Under Development; (g) the book value of all other tangible assets
(excluding land or other real property) as of the end of such fiscal quarter;
(h) the book value of all Unencumbered Mortgage Notes; and (i) the
Borrower’s Ownership Share of the preceding items of any Unconsolidated
Affiliate of the Borrower.


 


“Total Indebtedness” means, as of a given date, all
liabilities of the Borrower and its Subsidiaries which would, in conformity
with GAAP, be properly classified as a liability on a consolidated balance
sheet of the Borrower and its Subsidiaries as of such date (excluding
allocations of property purchase prices pursuant to Statement of Financial
Accounting Standards number 141 and the like), and in any event shall include
(without duplication): (a) all Indebtedness of the Borrower and its Subsidiaries,
(b) the Borrower’s Ownership Share of Indebtedness of its Unconsolidated
Affiliates, and (c) net obligations of the Borrower and its Subsidiaries
under any Derivatives Contracts not entered into as a hedge against existing
Indebtedness, in an amount equal to the Derivatives Termination Value thereof.


 


“Transfer Authorizer Designation Form” means a form
substantially in the form of Exhibit I to be delivered to the
Administrative Agent pursuant to Section 5.1.(a), as the same may be
amended, restated or modified from time to time with the prior written approval
of the Administrative Agent.


 


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


 


“UCC” means the Uniform Commercial Code as in effect in any
applicable jurisdiction.


 


“Unconsolidated Affiliate” means, with respect to any Person,
any other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person


 


21
















 


on
an equity basis of accounting and whose financial results would not be
consolidated under GAAP with the financial results of such Person on the
consolidated financial statements of such Person.


 


“Unencumbered Asset” means a Property which satisfies all of
the following requirements: (a) such Property is (i) owned in fee
simple solely by the Borrower or a Guarantor or (ii) leased solely by the
Borrower or a Guarantor pursuant to a ground lease having terms and conditions
reasonably acceptable to the Administrative Agent; (b) such Property is in
service; (c) such Property is used for office or industrial uses, or any
other use incidental thereto, as currently in use at the Properties;
(d) neither such Property, nor any interest of the Borrower or such Guarantor
therein, is subject to any Lien (other than Permitted Liens of the types
described in clauses (a) through (c) or (e) through (i) of
the definition thereof or Liens in favor of the Borrower or a Guarantor) or to
any Negative Pledge; (e) if such Property is owned by a Subsidiary,
(i) none of the Borrower’s direct or indirect ownership interest in such
Subsidiary is subject to any Lien (other than Permitted Liens of the types
described in clauses (a) through (c) or (e) through (i) of
the definition thereof or Liens in favor of the Borrower or a Guarantor) or to
any Negative Pledge and (ii) the Borrower directly, or indirectly through
a Subsidiary, has the right to sell, transfer or otherwise dispose of such
Property without the need to obtain the consent of any Person; (f) such
Property is either (i) a Domestic Property, (ii) a Canadian Property
or (iii) United States Territory Property and (g) such Property is
free of all structural defects or major architectural deficiencies, title
defects, environmental conditions or other adverse matters which, individually
or collectively, materially impair the value of such Property.


 


“Unencumbered Asset Value” means, at any given time, the sum
of: (a)(i) Net Operating Income from all Unencumbered Assets for the fiscal
quarter most recently ending times (ii) 4 divided by (iii) the
Capitalization Rate; and (b) unrestricted cash and Cash Equivalents of the
Borrower so long as such cash and Cash Equivalents are not subject to any Liens
(other than Permitted Liens of the types described in clauses (a) through (c) or
(e) through (i) of the definition thereof) or to any Negative
Pledge.  To the extent that Properties
leased by the Borrower or a Guarantor pursuant to a ground lease would, in the
aggregate, account for more than 5.0% of Unencumbered Asset Value, such excess
shall be excluded.  With respect to any
Unencumbered Asset acquired during such fiscal quarter, Net Operating Income
attributable to such Unencumbered Asset shall be included in the calculation of
Unencumbered Asset Value on a pro forma basis reasonably acceptable to
Administrative Agent.


 


“Unencumbered Mortgage Note” means a promissory note
satisfying all of the following requirements: (a) such promissory note is
owned solely by the Borrower or a Guarantor; (b) such promissory note is
secured by a Lien on real property improved only with office buildings or other
improvements of a type similar to improvements located on the Properties as of
the Agreement Date; (c) neither such promissory note, nor any interest of
the Borrower or such Guarantor therein, is subject to any Lien (other than
Permitted Liens of the types described in clauses (a) through (c) or
(e) through (i) of the definition thereof or Liens in favor of the
Borrower or a Guarantor) or to any Negative Pledge; (d) if such promissory
note is owned by a Subsidiary, (i) none of the Borrower’s direct or
indirect ownership interest in such Subsidiary is subject to any Lien (other
than Permitted Liens of the types described in clauses (a) through (c) or
(e) through (i) of the definition thereof or Liens in favor of the
Borrower or a Guarantor) or to any Negative Pledge and (ii) the Borrower
directly, or indirectly through a Subsidiary, has the right to sell, transfer
or otherwise dispose of such promissory note without the need to obtain the
consent of any Person; and (d) such real property and related improvements
are not subject to any other Lien (other than Permitted Liens of the types
described in clauses (a) through (c) or (e) through (i) of
the definition thereof or Liens in favor of the Borrower or a Guarantor).


 


“Unencumbered Net Operating Income” or “Unencumbered
NOI” means the Net Operating Income from all Unencumbered Assets for
the fiscal quarter most recently ending. 
When determining Unencumbered Net Operating Income: (a) Net
Operating Income attributable to an Unencumbered Asset


 


22

















 


disposed
of during such fiscal quarter shall be excluded; (b) to the extent
Unencumbered NOI attributable to Canadian Properties would exceed 10% of total
Unencumbered NOI, such excess shall be excluded; (c) to the extent
Unencumbered NOI attributable to Non-Government Properties would exceed 15% of
total Unencumbered NOI, such excess shall be excluded; and (d) to the
extent Unencumbered NOI attributable to United States Territory Properties
would exceed 5% of total Unencumbered NOI, such excess shall be excluded.


 


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


 


“Unimproved Land” means land on which no
development (other than improvements that are not material and are temporary in
nature) has occurred.


 


“United States Territory Property” means a Property located
in Puerto Rico, Guam or the U.S. Virgin Islands.


 


“Unsecured Debt Service” means, for a given period, Debt
Service for such period, with respect to Unsecured Indebtedness of the Borrower
and its Subsidiaries.


 


“Unsecured Indebtedness” means, with respect to a Person as
of any given date, the aggregate principal amount of all Indebtedness of such
Person outstanding at such date that is not Secured Indebtedness (excluding
Indebtedness associated with Unconsolidated Affiliates) and in the case of the
Borrower shall include (without duplication) Indebtedness that does not
constitute Secured Indebtedness. 
Indebtedness secured solely by a pledge of Equity Interests in a
Subsidiary owning one or more Properties which is also recourse to the Borrower
or a Guarantor shall not be treated as Secured Indebtedness.


 


“Wells Fargo” means Wells Fargo Bank, National Association,
and its successors and assigns.


 


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


 


“Withdrawal Liability” means any liability as a result of a
complete or partial withdrawal from a Multiemployer Plan as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


Section 1.2.  General; References to Eastern Time.


 


Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP in effect as of the Agreement
Date.  Notwithstanding the preceding
sentence, the calculation of liabilities shall not include any fair value
adjustments to the carrying value of liabilities to record such liabilities at
fair value pursuant to electing the fair value option election under FASB ASC
825-10-25 (formerly known as FAS 159, The
Fair Value Option for Financial Assets and Financial Liabilities) or
other standards of the Financial Accounting
Standards Board allowing entities to elect fair value option for
financial liabilities. Accordingly, the amount of liabilities shall be the
historical cost basis, which generally is the contractual amount owed adjusted
for amortization or accretion of any


 


23

















 


premium
or discount.  References in this
Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to
sections, articles, exhibits and schedules herein and hereto unless otherwise
indicated.  References in this Agreement
to any document, instrument or agreement (a) shall include all exhibits,
schedules and other attachments thereto, (b) shall include all documents,
instruments or agreements issued or executed in replacement thereof, to the
extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified from time to time to the extent not otherwise
stated herein or prohibited hereby and in effect at any given time.  Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter.  Unless explicitly set forth to the contrary,
a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary
of such Subsidiary and a reference to an “Affiliate” means a reference to an
Affiliate of the Borrower.  Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.  Unless otherwise indicated,
all references to time are references to Eastern time.


 


ARTICLE II. CREDIT FACILITY


 


Section 2.1.  Revolving Loans.


 


(a)           Making of Revolving Loans.  Subject to the terms and conditions set forth
in this Agreement, including without limitation, Section 2.14., each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
during the period from and including the Effective Date to but excluding the
Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding, such Lender’s Commitment.  Each borrowing of Base Rate Loans shall be in
an aggregate minimum amount of $500,000 and integral multiples of $250,000 in
excess thereof.  Each borrowing and Continuation
under Section 2.8. of, and each Conversion under Section 2.9. of Base
Rate Loans into, LIBOR Loans shall be in an aggregate minimum of $1,000,000 and
integral multiples of $1,000,000 in excess of that amount.  Notwithstanding the immediately preceding two
sentences but subject to Section 2.14., a borrowing of Revolving Loans may
be in the aggregate amount of the unused Commitments.  Within the foregoing limits and subject to
the terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Loans.


 


(b)           Requests for Revolving Loans.
Not later than 10:00 a.m. Eastern time at least one (1) Business Day
prior to a borrowing of Revolving Loans that are to be Base Rate Loans and not
later than 10:00 a.m. Eastern time at least three (3) Business Days
prior to a borrowing of Revolving Loans that are to be LIBOR Loans, the
Borrower shall deliver to the Administrative Agent a Notice of Borrowing.  Each Notice of Borrowing shall specify the
aggregate principal amount of the Revolving Loans to be borrowed, the date such
Revolving Loans are to be borrowed (which must be a Business Day), the use of
the proceeds of such Revolving Loans, the Type of the requested Revolving
Loans, and if such Revolving Loans are to be LIBOR Loans, the initial Interest
Period for such Revolving Loans.  Each
Notice of Borrowing shall be irrevocable once given and binding on the
Borrower.  Prior to delivering a Notice
of Borrowing, the Borrower may (without specifying whether a Revolving Loan
will be a Base Rate Loan or a LIBOR Loan) request that the Administrative Agent
provide the Borrower with the most recent LIBOR available to the Administrative
Agent.  The Administrative Agent shall
provide such quoted rate to the Borrower on the date of such request or as soon
as possible thereafter.


 


(c)           Funding of Revolving Loans.  Promptly after receipt of a Notice of
Borrowing under the immediately preceding subsection (b),  the
Administrative Agent shall notify each Lender of the proposed borrowing.  Each Lender shall deposit an amount equal to
the Revolving Loan to be made by such Lender to the Borrower with the
Administrative Agent at the Principal Office, in immediately available funds
not


 


24

















 


later
than 10:00 a.m. Eastern time on the date of such proposed Revolving
Loans.  Subject to fulfillment of all
applicable conditions set forth herein, the Administrative Agent shall make
available to the Borrower in the account specified in the Transfer Authorizer Designation
Form, not later than 1:00 p.m. Eastern time on the date of the requested
borrowing of Revolving Loans, the proceeds of such amounts received by the
Administrative Agent.


 


(d)           Assumptions Regarding Funding by
Lenders.  With respect to Revolving
Loans to be made after the Effective Date, unless the Administrative Agent
shall have been notified by any Lender that such Lender will not make available
to the Administrative Agent a Revolving Loan to be made by such Lender in
connection with any borrowing, the Administrative Agent may assume that such
Lender will make the proceeds of such Revolving Loan available to the
Administrative Agent in accordance with this Section, and the Administrative
Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower the amount of such Revolving Loan to be provided
by such Lender.  In such event, if such
Lender does not make available to the Administrative Agent the proceeds of such
Revolving Loan, then such Lender and the Borrower severally agree to pay to the
Administrative Agent on demand the amount of such Revolving Loan with interest
thereon, for each day from and including the date such Revolving Loan is made
available to the Borrower but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay the
amount of such interest to the Administrative Agent for the same or overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays to the Administrative
Agent the amount of such Revolving Loan, the amount so paid shall constitute
such Lender’s Revolving Loan included in the borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make available the proceeds of a Revolving Loan to be made by such
Lender.


 


Section 2.2.  Letters of Credit.


 


(a)           Letters of Credit.  Subject to the terms and conditions of this
Agreement, including without limitation, Section 2.14., the Issuing Bank,
on behalf of the Lenders, agrees to issue for the account of the Borrower
(which may be issued in support of obligations of any Subsidiary of the
Borrower) during the period from and including the Effective Date to, but
excluding, the date thirty (30) days prior to the Termination Date, one or more
standby letters of credit (each a “Letter of Credit”) up to a maximum aggregate
Stated Amount at any one time outstanding not to exceed $35,000,000 as such amount may be reduced from time to time in
accordance with the terms hereof (the “L/C Commitment Amount”).


 


(b)           Terms of Letters of Credit.  At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Issuing Bank and the
Borrower.  Notwithstanding the foregoing,
in no event may (i) the expiration date of any Letter of Credit extend
beyond the Termination Date, or (ii) any Letter of Credit have an initial
duration in excess of one year; provided, however, a Letter of Credit may
contain a provision providing for the automatic extension of the expiration
date in the absence of a notice of non-renewal from the Issuing Bank but in no
event shall any such provision permit the extension of the expiration date of
such Letter of Credit beyond the Termination Date; provided, further, that a
Letter of Credit may, as a result of its express terms or as the result of the
effect of an automatic extension provision, have an expiration date of not more
than one year beyond the Termination Date so long as the Borrower delivers to
the Administrative Agent for the benefit of the Issuing Bank no later than 30
days


 


25

















 


prior
to the Termination Date cash collateral for such Letter of Credit for deposit
into the Letter of Credit Collateral Account in an amount equal to the Stated
Amount of such Letter of Credit.  The
initial Stated Amount of each Letter of Credit shall be at least $500,000 (or
such lesser amount as may be acceptable to Issuing Bank, Administrative Agent
and the Borrower).


 


(c)           Requests for Issuance of Letters
of Credit.  The Borrower shall give
the Issuing Bank and the Administrative Agent written notice at least five (5) Business
Days prior to the requested date of issuance of a Letter of Credit, such notice
to describe in reasonable detail the proposed terms of such Letter of Credit
and the nature of the transactions or obligations proposed to be supported by
such Letter of Credit, and in any event shall set forth with respect to such
Letter of Credit the proposed (i) initial Stated Amount,
(ii) beneficiary, and (iii) expiration date. The Borrower shall also
execute and deliver such customary applications and agreements for standby
letters of credit, and other forms as requested from time to time by the
Issuing Bank.  Provided the Borrower has
given the notice prescribed by the first sentence of this subsection and
delivered such applications and agreements referred to in the preceding
sentence, subject to the other terms and conditions of this Agreement,
including the satisfaction of any applicable conditions precedent set forth in
Article 5.2., the Issuing Bank shall issue the requested Letter of Credit
on the requested date of issuance for the benefit of the stipulated beneficiary
but in no event shall the Issuing Bank be required to issue the requested
Letter of Credit prior to the date five (5) Business Days following the
date after which the Issuing Bank has received all of the items required to be
delivered to it under this subsection. 
The Issuing Bank shall not at any time issue any Letter of Credit if such
issuance would conflict with, or cause the Administrative Agent or any Lender
to exceed any limits imposed by, any Applicable Law.  References herein to “issue” and derivations
thereof with respect to Letters of Credit shall also include extensions or
modifications of any outstanding Letters of Credit, unless the context
otherwise requires.  Upon the written
request of the Borrower, the Issuing Bank shall deliver to the Borrower a copy
of each issued Letter of Credit within a reasonable time after the date of
issuance thereof.  To the extent any term
of a Letter of Credit Document is inconsistent with a term of any Loan
Document, the term of such Loan Document shall control.


 


(d)           Reimbursement Obligations.  Upon receipt by the Issuing Bank from the
beneficiary of a Letter of Credit of any demand for payment under such Letter
of Credit, the Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of the amount to be paid by the Issuing Bank as a result
of such demand and the date on which payment is to be made by the Issuing Bank
to such beneficiary in respect of such demand; provided, however, that the
Issuing Bank’s failure to give, or delay in giving, such notice shall not
discharge the Borrower in any respect from the applicable Reimbursement
Obligation.  The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the
Issuing Bank for the amount of each demand for payment under such Letter of
Credit at or prior to the date on which payment is to be made by the Issuing
Bank to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.  Upon
receipt by the Issuing Bank of any payment in respect of any Reimbursement
Obligation, the Issuing Bank shall promptly pay to each Lender that has
acquired a participation therein under the second sentence of the immediately
following subsection (i) such Lender’s Commitment Percentage of such
payment.


 


(e)           Manner of Reimbursement.  Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent and the Issuing Bank whether or not the Borrower intends
to borrow hereunder to finance its obligation to reimburse the Issuing Bank for
the amount of the related demand for payment and, if it does, the Borrower
shall submit a timely request for such borrowing as provided in the applicable
provisions of this Agreement.  If the
Borrower fails to so advise the Administrative Agent and the Issuing Bank, or
if the Borrower fails to reimburse the Issuing Bank for a demand for payment
under a Letter of Credit by the date of such payment, the failure of which the
Issuing Bank shall promptly notify the Administrative Agent, then (i) if
the applicable conditions contained in Article V. would permit the making
of Revolving Loans, the Borrower shall be


 


26

















 


deemed
to have requested a borrowing of Revolving Loans (which shall be Base Rate
Loans) in an amount equal to the unpaid Reimbursement Obligation and the
Administrative Agent shall give each Lender prompt notice of the amount of the
Revolving Loan to be made available to the Administrative Agent not later than
11:00 a.m. Eastern time and (ii) if such conditions would not permit
the making of Revolving Loans, the provisions of subsection (j) of
this Section shall apply.  The
limitations set forth in the second sentence of Section 2.1.(a) shall
not apply to any borrowing of Base Rate Loans under this subsection.


 


(f)            Effect of Letters of Credit on
Commitments.  Upon the issuance by
the Issuing Bank of any Letter of Credit and until such Letter of Credit shall
have expired or been cancelled, the Commitment of each Lender shall be deemed
to be utilized for all purposes of this Agreement in an amount equal to the
product of (i) such Lender’s Commitment Percentage and (ii) the sum
of (A) the Stated Amount of such Letter of Credit plus (B) any
related Reimbursement Obligations then outstanding.


 


(g)           Issuing Bank’s Duties Regarding
Letters of Credit; Unconditional Nature of Reimbursement Obligations.  In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Issuing Bank shall only be
required to use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit.  The Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the
foregoing, none of the Issuing Bank, Administrative Agent or any of the Lenders
shall be responsible for, and the Borrower’s obligations in respect of Letters
of Credit shall not be affected in any manner by, (i) the form, validity,
sufficiency, accuracy, genuineness or legal effects of any document submitted
by any party in connection with the application for and issuance of or any
drawing honored under any Letter of Credit even if such document should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any Letter of Credit to comply fully
with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, facsimile, electronic mail, telecopy
or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication
by the beneficiary of any Letter of Credit, or of the proceeds of any drawing
under any Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Issuing Bank, Administrative Agent or the Lenders.  None of the above shall affect, impair or
prevent the vesting of any of the Issuing Bank’s or Administrative Agent’s
rights or powers hereunder.  Any action
taken or omitted to be taken by the Issuing Bank under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final, non-appealable judgment), shall not create against the Issuing Bank any
liability to the Borrower, the Administrative Agent or any Lender.  In this connection, the obligation of the
Borrower to reimburse the Issuing Bank for any drawing made under any Letter of
Credit, and to repay any Revolving Loan made pursuant to the second sentence of
the immediately preceding subsection (e), shall be absolute, unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement and any other applicable Letter of Credit Document under all
circumstances whatsoever, including without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit
Document or any term or provisions therein; (B) any amendment or waiver of
or any consent to departure from all or any of the Letter of Credit Documents;
(C) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against the Issuing Bank, the Administrative
Agent or any Lender, any beneficiary of a


 


27

















 


Letter
of Credit or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the
Borrower, the Issuing Bank, the Administrative Agent, any Lender or any other
Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Letter of Credit or of the proceeds of
any drawing under such Letter of Credit; (G) payment by the Issuing Bank
under any Letter of Credit against presentation of a draft or certificate which
does not strictly comply with the terms of such Letter of Credit; and
(H) any other act, omission to act, delay or circumstance whatsoever that
might, but for the provisions of this Section, constitute a legal or equitable
defense to or discharge of the Borrower’s Reimbursement Obligations.  Notwithstanding anything to the contrary
contained in this Section or Section 12.10., but not in limitation of
the Borrower’s unconditional obligation to reimburse the Issuing Bank for any
drawing made under a Letter of Credit as provided in this Section and to
repay any Revolving Loan made pursuant to the second sentence of the
immediately preceding subsection (e), the Borrower shall have no
obligation to indemnify the Administrative Agent, the Issuing Bank or any
Lender in respect of any liability incurred by the Administrative Agent, the
Issuing Bank or such Lender arising solely out of the gross negligence or
willful misconduct of the Administrative Agent, the Issuing Bank or such Lender
in respect of a Letter of Credit as determined by a court of competent
jurisdiction in a final, non-appealable judgment.  Except as otherwise provided in this Section,
nothing in this Section shall affect any rights the Borrower may have with
respect to the gross negligence or willful misconduct of the Administrative
Agent, the Issuing Bank or any Lender with respect to any Letter of Credit.


 


(h)           Amendments, Etc.  The issuance by the Issuing Bank of any
amendment, supplement or other modification to any Letter of Credit shall be
subject to the same conditions applicable under this Agreement to the issuance
of new Letters of Credit (including, without limitation, that the request
therefor be made through the Issuing Bank), and no such amendment, supplement
or other modification shall be issued unless either (i) the respective
Letter of Credit affected thereby would have complied with such conditions had
it originally been issued hereunder in such amended, supplemented or modified
form or (ii) the Administrative Agent and Requisite Lenders (or all of the
Lenders if required by Section 12.7.) shall have consented thereto.  In connection with any such amendment,
supplement or other modification, the Borrower shall pay the fees, if any,
payable under the last sentence of Section 3.5.(c).


 


(i)            Lenders’ Participation in Letters
of Credit.  Immediately upon the
issuance by the Issuing Bank of any Letter of Credit each Lender shall be
deemed to have absolutely, irrevocably and unconditionally purchased and
received from the Issuing Bank, without recourse or warranty, an undivided
interest and participation to the extent of such Lender’s Commitment Percentage
of the liability of the Issuing Bank with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally obligated to
the Issuing Bank to pay and discharge when due, to the extent and in the manner
set forth in the immediately following subsection (j) below, such Lender’s
Commitment Percentage of the Issuing Bank’s liability under such Letter of
Credit.  In addition, upon the making of
each payment by a Lender to the Administrative Agent for the account of the
Issuing Bank in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any
further action on the part of the Issuing Bank, Administrative Agent or such
Lender, acquire (i) a participation in an amount equal to such payment in
the Reimbursement Obligation owing to the Issuing Bank by the Borrower in
respect of such Letter of Credit and (ii) a participation in a percentage
equal to such Lender’s Commitment Percentage in any interest or other amounts
payable by the Borrower in respect of such Reimbursement Obligation (other than
the Fees payable to the Issuing Bank pursuant to the second and the last
sentences of Section 3.5.(c)).


 


28

















 


(j)            Payment Obligation of Lenders.  Each Lender severally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, on demand in
immediately available funds in Dollars the amount of such Lender’s Commitment
Percentage of each drawing paid by the Issuing Bank under each Letter of Credit
to the extent such amount is not reimbursed by the Borrower pursuant to the
immediately preceding subsection (d); provided, however, that in respect of any
drawing under any Letter of Credit, the maximum amount that any Lender shall be
required to fund, whether as a Revolving Loan or as a participation, shall not
exceed such Lender’s Commitment Percentage of such drawing.  If the notice referenced in the second
sentence of Section 2.2.(e) is received by a Lender not later than
10:00 a.m. Eastern time, then such Lender shall make such payment
available to the Administrative Agent not later than 1:00 p.m. Eastern
time on the date of demand therefor; otherwise, such payment shall be made
available to the Administrative Agent not later than 12:00 p.m. Eastern
time on the next succeeding Business Day. 
Each Lender’s obligation to make such payments to the Administrative
Agent under this subsection, and the Administrative Agent’s right to receive
the same for the account of the Issuing Bank, shall be absolute, irrevocable
and unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other
Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of
any Default or Event of Default, including any Event of Default described in
Section 10.1.(e) or (f) or (iv) the termination of the
Commitments.  Each such payment to the
Administrative Agent for the account of the Issuing Bank shall be made without
any offset, abatement, withholding or deduction whatsoever.


 


(k)           Information to Lenders.  Promptly following any change in Letters of
Credit outstanding, the Issuing Bank shall deliver to the Administrative Agent,
who shall promptly deliver the same to each Lender and the Borrower, a notice
describing the aggregate amount of all Letters of Credit outstanding at such
time.  Upon the request of any Lender
from time to time, the Issuing Bank shall deliver any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.  Other than as set forth in
this subsection, the Issuing Bank shall have no duty to notify the Lenders
regarding the issuance or other matters regarding Letters of Credit issued
hereunder.  The failure of the Issuing
Bank to perform its requirements under this subsection shall not relieve any
Lender from its obligations under the immediately preceding subsection (j).


 


(l)            Defaulting Lenders.  Upon demand by the Administrative Agent at
any time while a Lender is a Defaulting Lender or a Potential Defaulting
Lender, to the extent a reallocation cannot be, or can only partially be, or
has not been, effected under Section 3.9.(d), the Borrower shall deliver
to the Administrative Agent, for the benefit of the Issuing Bank, within one
Business Day of such demand, cash collateral or other credit support
satisfactory to the Issuing Bank in its sole discretion in an amount equal to
such Defaulting Lender’s or Potential Defaulting Lender’s Commitment Percentage
of the Letter of Credit Liabilities then outstanding.  Such cash collateral and other credit support
shall be subject to the provisions of Section 3.9.(f).


 


Section 2.3.  Swingline Loans.


 


(a)           Swingline Loans.  Subject to the terms and conditions hereof,
including without limitation Section 2.14., the Swingline Lender agrees to
make Swingline Loans to the Borrower, during the period from the Effective Date
to but excluding the Swingline Maturity Date, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, $50,000,000, as such amount may be reduced from time to time in
accordance with the terms hereof.  If at
any time the aggregate principal amount of the Swingline Loans outstanding at
such time exceeds the Swingline Commitment in effect at such time, the Borrower
shall immediately pay the Administrative Agent for the account of the Swingline
Lender the amount of such excess.  Subject
to the terms and conditions of this Agreement, the Borrower may borrow, repay
and reborrow Swingline Loans hereunder.


 


29

















 


(b)           Procedure for Borrowing Swingline
Loans.  The Borrower shall give the
Administrative Agent and the Swingline Lender notice pursuant to a Notice of
Swingline Borrowing or telephonic notice of each borrowing of a Swingline
Loan.  Each Notice of Swingline Borrowing
shall be delivered to the Swingline Lender no later than 10:00 a.m.
Eastern time on the proposed date of such borrowing.  Any telephonic notice shall include all
information to be specified in a written Notice of Swingline Borrowing and
shall be promptly confirmed in writing by the Borrower pursuant to a Notice of
Swingline Borrowing sent to the Swingline Lender by telecopy on the same day of
the giving of such telephonic notice. 
Not later than 12:00 p.m. Eastern time on the date of the requested
Swingline Loan and subject to satisfaction of the applicable conditions set
forth in Article 5.2. for such borrowing, the Swingline Lender will make
the proceeds of such Swingline Loan available to the Borrower in Dollars, in
immediately available funds, at the account specified by the Borrower in the
Notice of Swingline Borrowing.


 


(c)           Interest.  Swingline Loans shall bear interest at a per
annum rate equal to the Base Rate as in effect from time to time plus the
Applicable Margin or at such other rate or rates as the Borrower and the
Swingline Lender may agree from time to time in writing.  Interest on Swingline Loans is solely for the
account of the Swingline Lender (except to the extent a Lender acquires a
participating interest in a Swingline Loan pursuant to the immediately
following subsection (e)).  All accrued
and unpaid interest on Swingline Loans shall be payable on the dates and in the
manner provided in Section 2.4. with respect to interest on Base Rate
Loans (except as the Swingline Lender and the Borrower may otherwise agree in
writing in connection with any particular Swingline Loan).


 


(d)           Swingline Loan Amounts, Etc.  Each Swingline Loan shall be in the minimum
amount of $500,000 and integral multiples of $250,000 in excess thereof, or
such other minimum amounts agreed to by the Swingline Lender and the Borrower.  Any voluntary prepayment of a Swingline Loan
must be in integral multiples of $100,000 or the aggregate principal amount of
all outstanding Swingline Loans (or such other minimum amounts upon which the
Swingline Lender and the Borrower may agree) and in connection with any such
prepayment, the Borrower must give the Swingline Lender and the Administrative
Agent prior written notice thereof no later than 11:00 a.m. Eastern time
on the day prior to the date of such prepayment.  The Swingline Loans shall, in addition to
this Agreement, be evidenced by the Swingline Note.


 


(e)           Repayment and Participations of
Swingline Loans.  The Borrower agrees
to repay each Swingline Loan within one Business Day of demand therefor by the
Swingline Lender and, in any event, within five (5) Business Days after the date such Swingline Loan was
made; provided, that the proceeds of a Swingline Loan may not be used to pay a
Swingline Loan.  Notwithstanding the
foregoing, the Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Swingline Loans on the Swingline
Maturity Date (or such earlier date as the Swingline Lender and the Borrower
may agree in writing).  In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrower, the
Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), request a borrowing of
Revolving Loans that are Base Rate Loans from the Lenders in an amount equal to
the principal balance of such Swingline Loan. 
The amount limitations contained in the second sentence of
Section 2.1.(a) shall not apply to any borrowing of such Revolving
Loans made pursuant to this subsection. 
The Swingline Lender shall give notice to the Administrative Agent of
any such borrowing of Revolving Loans not later than 10:00 a.m. Eastern
time at least one Business Day prior to the proposed date of such
borrowing.  Not later than 10:00 a.m.
Eastern time on the proposed date of such borrowing, each Lender will make
available to the Administrative Agent at the Principal Office for the account
of the Swingline Lender, in immediately available funds, the proceeds of the
Revolving Loan to be made by such Lender. 
The Administrative Agent shall pay the proceeds of such Revolving Loans
to the Swingline Lender, which shall apply such proceeds to repay such
Swingline Loan.  If the Lenders are
prohibited from making Revolving Loans required to be made under this
subsection for any reason whatsoever, including without limitation, the
occurrence of any of


 


30

















 


the
Defaults or Events of Default described in Sections 10.1.(e) or (f)),
each Lender shall purchase from the Swingline Lender, without recourse or
warranty, an undivided interest and participation to the extent of such Lender’s
Commitment Percentage of such Swingline Loan, by directly purchasing a
participation in such Swingline Loan in such amount and paying the proceeds
thereof to the Administrative Agent for the account of the Swingline Lender in
Dollars and in immediately available funds. 
A Lender’s obligation to purchase such a participation in a Swingline
Loan shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of
setoff, counterclaim, recoupment, defense or other right which such Lender or
any other Person may have or claim against the Administrative Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation,
any of the Defaults or Events of Default described in Sections 10.1. (e) or
(f)), or the termination of any Lender’s Commitment, (iii) the existence
(or alleged existence) of an event or condition which has had or could have a
Material Adverse Effect, (iv) any breach of any Loan Document by the
Administrative Agent, any Lender, the Borrower or any other Loan Party, or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.  If such
amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof, at the Federal Funds Rate. 
If such Lender does not pay such amount forthwith upon the Swingline
Lender’s demand therefor, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions requiring the other
Lenders to purchase a participation therein). 
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Revolving Loans, and any other
amounts due it hereunder, to the Swingline Lender to fund Swingline Loans in
the amount of the participation in Swingline Loans that such Lender failed to purchase
pursuant to this Section until such amount has been purchased (as a result
of such assignment or otherwise).


 


(f)            Defaulting Lenders.  Upon demand by the Swingline Lender at any
time while a Lender is a Defaulting Lender or a Potential Defaulting Lender, to
the extent a reallocation cannot be, or can only partially be, or has not been,
effected under Section 3.9.(d), the Borrower shall deliver to the
Administrative Agent for the benefit of the Swingline Lender within one
Business Day of such demand, cash collateral or other credit support
satisfactory to the Swingline Lender in its sole discretion in an amount equal
to such Defaulting Lender’s or Potential Defaulting Lender’s Commitment
Percentage of the aggregate principal amount of the Swingline Loans then
outstanding.  Such cash collateral and
other credit support shall be subject to the provisions of
Section 3.9.(f).


 


Section 2.4.  Rates and Payment of Interest on Loans.


 


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


 


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


 


(ii)           during such periods
as such Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest Period
therefor, plus the Applicable Margin.


 


Notwithstanding
the foregoing, while an Event of Default exists, the Borrower shall pay to the
Administrative Agent for the account of each Lender and the Issuing Bank, as
the case may be, interest at


 


31
















 


the
Post-Default Rate on the outstanding principal amount of any Loan made by such
Lender, on all Reimbursement Obligations and on any other amount payable by the
Borrower hereunder or under the Notes held by such Lender to or for the account
of such Lender (including without limitation, accrued but unpaid interest to
the extent permitted under Applicable Law).


 


(b)           Payment of Interest. All
accrued and unpaid interest on the outstanding principal amount of each Loan
shall be payable (i) monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective
Date and (ii) on any date on which the principal balance of such Loan is
due and payable in full (whether at maturity, due to acceleration or otherwise).  Interest payable at the Post-Default Rate
shall be payable from time to time on demand. 
All determinations by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding on the Lenders and the Borrower for
all purposes, absent manifest error.


 


(c)           Borrower Information Used to
Determine Applicable Interest Rates. 
The parties understand that the applicable interest rate for the
Obligations and certain fees set forth herein may be determined and/or adjusted
from time to time based upon certain financial ratios and/or other information
to be provided or certified to the Lenders by the Borrower (the “Borrower
Information”).  If it is subsequently
determined that any such Borrower Information was incorrect (for whatever
reason, including without limitation because of a subsequent restatement of
earnings by the Borrower) at the time it was delivered to the Administrative
Agent, and if the applicable interest rate or fees calculated for any period
were lower than they should have been had the correct information been timely
provided, then, such  interest rate
and such fees for such period shall be automatically recalculated using correct
Borrower Information.  The Administrative
Agent shall promptly notify the Borrower in writing of any additional interest
and fees due because of such recalculation, and the Borrower shall pay such
additional interest or fees due to the Administrative Agent, for the account of
each Lender, within five (5) Business Days of receipt of such written
notice.  Any recalculation of interest or
fees  required by this provision shall
survive the termination of this Agreement, and this provision shall not in any
way limit any of the Administrative Agent’s, the Issuing Bank’s, or any Lender’s
other rights under this Agreement.


 


Section 2.5.  Number of Interest Periods.


 


There
may be no more than 5 different Interest Periods for LIBOR Loans  outstanding at the same time.


 


Section 2.6.  Repayment of Loans.


 


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


 


Section 2.7.  Prepayments.


 


(a)           Optional.  Subject to Section 4.4., the Borrower
may prepay any Loan at any time without premium or penalty.  The Borrower shall give the Administrative
Agent at least three (3) Business Days prior written notice of the
prepayment of any Loan.  Each voluntary
prepayment of Base Rate Loans shall be in an aggregate minimum amount of
$500,000 and integral multiples of $250,000 in excess thereof.  Each voluntary prepayment of LIBOR Loans
shall be in an aggregate minimum of $1,000,000 and integral multiples of
$1,000,000 in excess of that amount.


 


32

















 


(b)           Mandatory.


 


(i)            Commitment
Overadvance.  If at any time the
aggregate principal amount of all outstanding Revolving Loans and Swingline
Loans, together with the aggregate amount of all Letter of Credit Liabilities,
exceeds the aggregate amount of the Commitments, the Borrower shall immediately
upon demand pay to the Administrative Agent for the account of the Lenders, the
amount of such excess.


 


(ii)           Application of
Mandatory Prepayments.  Amounts paid
under the preceding subsection (b)(i) shall be applied to pay all
amounts of principal outstanding on the Loans and any Reimbursement Obligations
pro rata in accordance with Section 3.2. and if any Letters of Credit are outstanding at such time,
the remainder, if any, shall be deposited into the Letter of Credit Collateral
Account for application to any Reimbursement Obligations.  If the Borrower is required to pay any
outstanding LIBOR Loans by reason of this Section prior to the end of the
applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 4.4.


 


Section 2.8.  Continuation.


 


So
long as no Default or Event of Default exists, the Borrower may on any Business
Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan by selecting a new Interest Period for such
LIBOR Loan.  Each Continuation of a LIBOR
Loan shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $1,000,000 in excess of that amount, and each new Interest Period
selected under this Section shall commence on the last day of the
immediately preceding Interest Period. 
Each selection of a new Interest Period shall be made by the Borrower
giving to the Administrative Agent a Notice of Continuation not later than
10:00 a.m. Eastern time on the third Business Day prior to the date of any
such Continuation.  Such notice by the
Borrower of a Continuation shall be by telecopy, electronic mail or other
similar form of communication in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR
Loans and portions thereof subject to such Continuation and (c) the
duration of the selected Interest Period, all of which shall be specified in
such manner as is necessary to comply with all limitations on Loans outstanding
hereunder.  Each Notice of Continuation
shall be irrevocable by and binding on the Borrower once given.  Promptly after receipt of a Notice of
Continuation, the Administrative Agent shall notify each Lender of the proposed
Continuation.  If the Borrower shall fail
to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, such Loan will automatically, on the last day of
the current Interest Period therefor, continue as a LIBOR Loan with an Interest
Period of one month; provided, however that if a Default or Event of Default
exists, such Loan will automatically, on the last day of the current Interest
Period therefor, Convert into a Base Rate Loan notwithstanding the first
sentence of Section 2.9. or the Borrower’s failure to comply with any of
the terms of such Section.


 


Section 2.9.  Conversion.


 


The
Borrower may on any Business Day, upon the Borrower’s giving of a Notice of
Conversion to the Administrative Agent by telecopy, electronic mail or other
similar form of communication, Convert all or a portion of a Revolving Loan of
one Type into a Revolving Loan of another Type; provided, however, a Base Rate
Loan may not be Converted into a LIBOR Loan if a Default or Event of Default
exists.  Each Conversion of Base Rate
Loans into LIBOR Loans shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $1,000,000 in excess of that amount.  Each such Notice of Conversion shall be given
not later than 10:00 a.m. Eastern time 3 Business Days prior to the date
of any proposed Conversion.  Promptly
after receipt of a Notice of Conversion, the Administrative Agent shall notify
each Lender of the proposed Conversion. 
Subject to the restrictions specified above, each Notice of Conversion
shall be by telecopy, electronic mail or other similar form of communication in
the form of


 


33

















 


a
Notice of Conversion specifying (a) the requested date of such Conversion,
(b) the Type of Loan to be Converted, (c) the portion of such Type of
Loan to be Converted, (d) the Type of Loan such Loan is to be Converted
into and (e) if such Conversion is into a LIBOR Loan, the requested
duration of the Interest Period of such Loan. 
Each Notice of Conversion shall be irrevocable by and binding on the
Borrower once given.


 


Section 2.10.  Notes.


 


(a)           Notes.  Except in the case of a Lender that has
requested not to receive a Revolving Note, the Revolving Loans made by each
Lender shall, in addition to this Agreement, also be evidenced by a Revolving
Note, payable to the order of such Lender in a principal amount equal to,
subject to Section 12.6.(b)(iv), the amount of its Commitment as
originally in effect and otherwise duly completed.  The Swingline Loans made by the Swingline
Lender to the Borrower shall, in addition to this Agreement, also be evidenced
by a Swingline Note payable to the order of the Swingline Lender.


 


(b)           Records.  The date, amount, interest rate, Type and
duration of Interest Periods (if applicable) of each Loan made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and such entries shall be binding
on the Borrower absent manifest error; provided, however, that (i) the
failure of a Lender to make any such record shall not affect the obligations of
the Borrower under any of the Loan Documents and (ii) if there is a
discrepancy between such records of a Lender and the statements of accounts
maintained by the Administrative Agent pursuant to Section 3.8., in the
absence of manifest error, the statements of account maintained by the
Administrative Agent pursuant to Section 3.8. shall be controlling.


 


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


 


Section 2.11.  Voluntary Reductions of the Commitment.


 


The
Borrower shall have the right to terminate or reduce the aggregate unused
amount of the Commitments (for which purpose use of the Commitments shall be
deemed to include the aggregate amount of all Letter of Credit Liabilities and
the aggregate principal amount of all Swingline Loans) at any time and from
time to time without penalty or premium upon not less than five (5) Business
Days prior written notice to the Administrative Agent of each such termination
or reduction, which notice shall specify the effective date thereof and the
amount of any such reduction (which in the case of any partial reduction of the
Commitments shall not be less than $10,000,000 and integral multiples of
$5,000,000 in excess of that amount in the aggregate) and shall be irrevocable
once given and effective only upon receipt by the Administrative Agent (“Commitment
Reduction Notice”).  Promptly after
receipt of a Commitment Reduction Notice the Administrative Agent shall notify
each Lender of the proposed termination or Commitment reduction.  The Commitments, once reduced or terminated
pursuant to this Section, may not be increased or reinstated.  The Borrower shall pay all interest on the
Revolving Loans, and Fees under Section 3.5.(b) with respect to the
amount of the Commitment being reduced, accrued to the date of such reduction
or termination of the Commitments to the Administrative Agent for the account
of the Lenders, including but not limited to any applicable compensation due to
each Lender in accordance with Section 4.4.


 


34

















 


Section 2.12.  Extension of Termination Date.


 


The Borrower shall have the right, exercisable one
time, to extend the current Termination Date by one year.  The Borrower may exercise such right only by
executing and delivering to the Administrative Agent at least 30 days but not
more than 90 days prior to the current Termination Date, a written request for
such extension (an “Extension Request”). 
The Administrative Agent shall notify the Lenders if it receives an
Extension Request promptly upon receipt thereof.  Subject to satisfaction of the following
conditions, the Termination Date shall be extended for one year effective upon
receipt by the Administrative Agent of the Extension Request and payment of the
fee referred to in the following clause (ii): (i) immediately prior
to such extension and immediately after giving effect thereto, (x) no
Default or Event of Default shall exist and (y) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in
all material respects on and as of the date of such extension with the same
force and effect as if made on and as of such date except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances specifically and expressly permitted under the
Loan Documents and (ii) the Borrower shall have paid the Fees payable
under Section 3.5.(d).  At any time
prior to the effectiveness of any such extension, upon the Administrative Agent’s
request, the Borrower shall deliver to the Administrative Agent a certificate
from the chief executive officer or chief financial officer certifying the
matters referred to in the immediately preceding clauses (i)(x) and
(i)(y).


 


Section 2.13.  Expiration Date of Letters of Credit Past
Commitment Termination.


 


If
on the date the Commitments are terminated or reduced to zero (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise),
there are any Letters of Credit outstanding hereunder with respect to which the
Borrower has not complied with the conditions set forth in the second proviso
of the second sentence of Section 2.2.(b), the Borrower shall, on such
date, pay to the Administrative Agent, for its benefit and the benefit of the
Lenders and the Issuing Bank, an amount of money sufficient to cause the
balance of available funds on deposit in the Letter of Credit Collateral
Account to equal the aggregate Stated Amount of such Letters of Credit for
deposit into the Letter of Credit Collateral Account.


 


Section 2.14.  Amount Limitations.


 


Notwithstanding
any other term of this Agreement or any other Loan Document, no Lender shall be
required to make a Loan, the Issuing Bank shall not be required to issue a
Letter of Credit and no reduction of the Commitments pursuant to Section 2.11. shall take effect, if
immediately after the making of such Loan, the issuance of such Letter of
Credit or such reduction in the Commitments, the aggregate principal amount of
all outstanding Revolving Loans and Swingline Loans, together with the
aggregate amount of all Letter of Credit Liabilities, would exceed the
aggregate amount of the Commitments at such time.


 


Section 2.15.  Increase in Commitments.


 


The Borrower shall have the right at any time and
from time to time during the period beginning on the Effective Date to
but excluding the Termination Date to
request increases in the aggregate amount of the Commitments by providing
written notice to the Administrative Agent, which notice shall be irrevocable
once given; provided, however, that after giving effect to any
such increases the aggregate amount of the Commitments shall not exceed
$1,000,000,000 (less the aggregate amount of reductions of Commitments effected
pursuant to Section 2.11.).  Each such increase in the Commitments must be
an


 


35

















 


aggregate minimum amount of $50,000,000 and integral
multiples of $10,000,000 in excess thereof. 
The Administrative Agent, in consultation with the Borrower, shall
manage all aspects of the syndication of such increase in the Commitments,
including decisions as to the selection of the existing Lenders and/or other
banks, financial institutions and other institutional lenders to be approached
with respect to such increase and the allocations of the increase in the
Commitments among such existing Lenders and/or other banks, financial
institutions and other institutional lenders. 
No Lender shall be obligated in any way whatsoever to increase its
Commitment or provide a new Commitment, and any new Lender becoming a party to
this Agreement in connection with any such requested increase must be an
Eligible Assignee.  If a new Lender
becomes a party to this Agreement, or if any existing Lender is increasing its
Commitment, such Lender shall on the date it becomes a Lender hereunder (or in
the case of an existing Lender, increases its Commitment) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (determined
with respect to the Lenders’ respective Commitments and after giving effect to
the increase of Commitments) of any outstanding Revolving Loans, by making
available to the Administrative Agent for the account of such other Lenders, in
same day funds, an amount equal to the sum of (A) the portion of the
outstanding principal amount of such Revolving Loans to be purchased by such
Lender, plus (B) the aggregate amount of payments previously made
by the other Lenders under Section 2.2.(j) that have not been repaid,
plus (C) interest accrued and unpaid to and as of such date on such
portion of the outstanding principal amount of such Revolving Loans.  The Borrower shall pay to the Lenders amounts
payable, if any, to such Lenders under Section 4.4. as a result of the
prepayment of any such Revolving Loans. 
Effecting the increase of the Commitments under this Section is
subject to the following conditions precedent: 
(x) no Default or Event of Default shall be in existence on the
effective date of such increase, (y) the representations and warranties
made or deemed made by the Borrower or any other Loan Party in any Loan
Document to which such Loan Party is a party shall be true and correct in all
material respects on the effective date of such increase except to the extent
that such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been true
and correct in all material respects on and as of such earlier date) and except
for changes in factual circumstances specifically and expressly permitted
hereunder, and (z)  the Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Administrative
Agent:  (i) if not previously
delivered to the Administrative Agent, copies certified by the Secretary or
Assistant Secretary of (A) all corporate and other necessary action taken
by the Borrower to authorize such increase and (B) all corporate and other
necessary action taken by each Guarantor authorizing the guaranty of such
increase; (ii) an opinion of counsel to the Borrower and the Guarantors,
and addressed to the Administrative Agent and the Lenders covering such matters
as reasonably requested by the Administrative Agent, and (iii) new
Revolving Notes executed by the Borrower, payable to any new Lenders and
replacement Revolving Notes executed by the Borrower, payable to any existing
Lenders increasing their Commitments, in the amount of such Lender’s Commitment
at the time of the effectiveness of the applicable increase in the aggregate
amount of the Commitments.  In connection
with any increase in the aggregate amount of the Commitments pursuant to this Section 2.15. any
Lender becoming a party hereto shall execute such documents and agreements as
the Administrative Agent may reasonably request.


 


Section 2.16.  Funds Transfer Disbursements.


 


(a)           Generally.  The Borrower hereby authorizes the
Administrative Agent to disburse the proceeds of any Loan made by the Lenders
or any of their Affiliates pursuant to the Loan Documents as requested by an
authorized representative of the Borrower to any of the accounts designated in
the Transfer Authorizer Designation Form. 
The Borrower agrees to be bound by any transfer request: (i) authorized
or transmitted by the Borrower; or (ii) made in the Borrower’s name and
accepted by the Administrative Agent in good faith and in compliance with these
transfer instructions, even if not properly authorized by the Borrower.  The Borrower further agrees and acknowledges
that the Administrative Agent may rely solely on any bank routing number or
identifying bank account number or


 


36

















 


name
provided by the Borrower to effect a wire of funds transfer even if the
information provided by the Borrower identifies a different bank or account
holder than named by the Borrower.  The
Administrative Agent is not obligated or required in any way to take any
actions to detect errors in information provided by the Borrower.  If the Administrative Agent takes any actions
in an attempt to detect errors in the transmission or content of transfer
requests or takes any actions in an attempt to detect unauthorized funds
transfer requests, the Borrower agrees that no matter how many times the
Administrative Agent takes these actions the Administrative Agent will not in
any situation be liable for failing to take or correctly perform these actions
in the future and such actions shall not become any part of the transfer
disbursement procedures authorized under this provision, the Loan Documents, or
any agreement between the Administrative Agent and the Borrower.  The Borrower agrees to notify the
Administrative Agent of any errors in the transfer of any funds or of any
unauthorized or improperly authorized transfer requests within fourteen (14)
days after the Administrative Agent’s confirmation to the Borrower of such
transfer.


 


(b)           Funds Transfer.  The Administrative Agent will, in its sole
discretion, determine the funds transfer system and the means by which each
transfer will be made.  The
Administrative Agent may delay or refuse to accept a funds transfer request if
the transfer would: (i) violate the terms of this authorization, (ii) require
use of a bank unacceptable to the Administrative Agent or any Lender or
prohibited by any Governmental Authority, (iii) cause the Administrative
Agent or any Lender to violate any Federal Reserve or other regulatory risk
control program or guideline or (iv) otherwise cause the Administrative
Agent or any Lender to violate any Applicable Law or regulation.


 


(c)           Limitation of Liability.  None of the Administrative Agent, the Issuing
Bank or any Lender shall be liable to the Borrower or any other parties for (i) errors,
acts or failures to act of others, including other entities, banks, communications
carriers or clearinghouses, through which the Borrower’s transfers may be made
or information received or transmitted, and no such entity shall be deemed an
agent of the Administrative Agent, the Issuing Bank or any Lender, (ii) any
loss, liability or delay caused by fires, earthquakes, wars, civil
disturbances, power surges or failures, acts of government, labor disputes,
failures in communications networks, legal constraints or other events beyond
Administrative Agent’s, Issuing Bank’s or any Lender’s control, or (iii) any
special, consequential, indirect or punitive damages, whether or not (x) any
claim for these damages is based on tort or contract or (y) the
Administrative Agent, the Issuing Bank, any Lender or the Borrower knew or
should have known the likelihood of these damages in any situation.  Neither the Administrative Agent, the Issuing
Bank nor any Lender makes any representations or warranties other than those
expressly made in this Agreement.


 


ARTICLE III. PAYMENTS, FEES
AND OTHER GENERAL PROVISIONS


 


Section 3.1.  Payments.


 


(a)           Payments by Borrower.  Except to the extent otherwise provided
herein, all payments of principal, interest, Fees and other amounts to be made
by the Borrower under this Agreement, the Notes or any other Loan Document
shall be made in Dollars, in immediately available funds, without setoff,
deduction or counterclaim, to the Administrative Agent at the Principal Office,
not later than 12:00 p.m. Eastern time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).  Subject to Section 10.5., the Borrower
shall, at the time of making each payment under this Agreement or any other
Loan Document, specify to the Administrative Agent the amounts payable by the
Borrower hereunder to which such payment is to be applied.  Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any Note shall be
paid to such Lender by wire transfer of immediately available funds in
accordance with the wiring instructions provided by such Lender to the
Administrative Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender. 
Each payment received by the Administrative Agent for the account of the
Issuing Bank


 


37

















 


under
this Agreement shall be paid to the Issuing Bank by wire transfer of
immediately available funds in accordance with the wiring instructions provided
by the Issuing Bank to the Administrative Agent from time to time, for the
account of the Issuing Bank.  In the
event the Administrative Agent fails to pay such amounts to such Lender or the
Issuing Bank, as the case may be, (i) by 5:00 p.m. Eastern time on
the Business Day such funds are received by the Administrative Agent, if such
amounts are received by 12:00 p.m. Eastern time on such date or (ii) by
5:00 p.m. Eastern time on the Business Day following the date such funds are
received by the Administrative Agent, if such amounts are received after
12:00 p.m. Eastern time on any Business Day, the Administrative Agent
shall pay interest on such amount until paid at a rate per annum equal to the
Federal Funds Rate from time to time in effect. 
If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall
continue to accrue at the rate, if any, applicable to such payment for the
period of such extension.


 


(b)           Presumptions Regarding Payments by
Borrower.  Unless the Administrative
Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders
or the Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may (but shall not be obligated to), in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due.  In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent on demand that amount so distributed to such Lender or
the Issuing Bank, with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


Section 3.2.  Pro Rata Treatment.


 


Except
to the extent otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.1.(a), 2.2.(e) and 2.3.(e) shall be made
from the Lenders, each payment of the fees under Section 3.5.(a), Section 3.5.(b),
the first sentence of Section 3.5.(c), and Section 3.5.(d) shall
be made for the account of the Lenders, and each termination or reduction of
the amount of the Commitments under Section 2.11. shall be applied to the
respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (b) each payment or prepayment of principal
of Revolving Loans shall be made for the account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the Revolving Loans
held by them, provided that, subject to Section 3.9., if immediately prior
to giving effect to any such payment in respect of any Revolving Loans the
outstanding principal amount of the Revolving Loans shall not be held by the
Lenders pro rata in accordance with their respective Commitments in effect at
the time such Revolving Loans were made, then such payment shall be applied to
the Revolving Loans in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Revolving Loans being
held by the Lenders pro rata in accordance with their respective Commitments; (c) each
payment of interest on Revolving Loans shall be made for the account of the
Lenders pro rata in accordance with the amounts of interest on such Revolving
Loans then due and payable to the respective Lenders; (d) the making,
Conversion and Continuation of Revolving Loans of a particular Type (other than
Conversions provided for by Section 4.1.) shall be made pro rata among the
Lenders according to the amounts of their respective Revolving Loans and the
then current Interest Period for each Lender’s portion of each such Loan of
such Type shall be coterminous; (e) the Lenders’ participation in, and
payment obligations in respect of, Swingline Loans under Section 2.3.,
shall be in accordance with their respective Commitment Percentages; and
(f) the Lenders’ participation in, and payment obligations in respect of,
Letters of Credit under Section 2.2., shall be in accordance with their
respective Commitment Percentages.  All
payments of principal, interest, fees and


 


38

















 


other
amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a
participating interest in any such Swingline Loan pursuant to
Section 2.3.(e), in which case such payments shall be pro rata in
accordance with such participating interests). 
Any payment or prepayment of principal or interest made during the
existence of a Default or Event of Default shall be made for the account of the
Lenders and the Issuing Bank in accordance with the order set forth in
Section 10.5.


 


Section 3.3.  Sharing of Payments, Etc.


 


If
a Lender shall obtain payment of any principal of, or interest on, any of its
Loans under this Agreement or shall obtain payment on any other Obligation
owing by the Borrower or any other Loan Party through the exercise of any right
of set-off, banker’s lien, counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made by
the Borrower or any other Loan Party to a Lender (other than any payment in
respect of Specified Derivatives Obligations) 
not in accordance with the terms of 
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.2. or Section 10.5., as applicable, such
Lender shall promptly purchase from the other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made
by the other Lenders or other Obligations owed to such other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may actually be incurred by such
Lender in obtaining or preserving such benefit) in accordance with the
requirements of Section 3.2. or Section 10.5., as applicable.  To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored.  The Borrower agrees that any Lender so
purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off,
banker’s lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation.  Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.


 


Section 3.4.  Several Obligations.


 


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


 


Section 3.5.  Fees.


 


(a)           Closing Fee.  On the Effective Date, the Borrower agrees to
pay to the Administrative Agent and each Lender all loan fees as have been
agreed to in writing by the Borrower and the Administrative Agent.


 


(b)           Facility Fees. During the
period from the Effective Date to but excluding the Termination Date, the
Borrower agrees to pay to the Administrative Agent for the account of the
Lenders a facility fee equal to the daily aggregate amount of the Commitments
(whether or not utilized) times a rate per annum equal to the Applicable
Facility Fee. Such fee shall be payable quarterly in arrears on the first day
of each January, April, July and October during the term of this
Agreement and on the Termination Date or any earlier date of termination of the
Commitments or reduction of the Commitments to zero.  The Borrower


 


39

















 


acknowledges
that the fee payable hereunder is a bona fide commitment fee and is intended as
reasonable compensation to the Lenders for committing to make funds available
to the Borrower as described herein and for no other purposes.


 


(c)           Letter of Credit Fees.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a letter of credit fee at a
rate per annum equal to the Applicable Margin times the daily average Stated
Amount of each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (x) to and including the date such
Letter of Credit expires or is cancelled or (y) to but excluding the date
such Letter of Credit is drawn in full. 
In addition to such fees, the Borrower shall pay to the Issuing Bank
solely for its own account, a fronting fee in respect of each Letter of Credit
equal to one-eighth of one percent (0.125%) of the initial Stated Amount of
such Letter of Credit; provided, however, in no event shall the aggregate
amount of such fee in respect of any Letter of Credit be less than $1,000.  The fees provided for in this subsection
shall be nonrefundable and payable, in the case of the fee provided for in the
first sentence, in arrears (i) quarterly on the first day of January,
April, July and October, (ii) on the Termination Date, (iii) on
the date the Commitments are terminated or reduced to zero and
(iv) thereafter from time to time on demand of the Administrative Agent  and in the case of the fee provided for in the second
sentence, at the time of issuance of such Letter of Credit.  The Borrower shall pay directly to the
Issuing Bank from time to time on demand all commissions, charges, costs and
expenses in the amounts customarily charged or incurred by the Issuing Bank
from time to time in like circumstances with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or any other
transaction relating thereto.


 


(d)           Extension Fee.  If the Borrower exercises its right to extend
the Termination Date in accordance with Section 2.12., the Borrower agrees to pay to the Administrative Agent for
the account of each Lender a fee equal to thirty-five one-hundredths of one
percent (0.35%) of the amount of such Lender’s Commitment (whether or not
utilized).  Such fee shall be due and
payable in full on the date the Administrative Agent receives the Extension
Request pursuant to such Section.


 


(e)           Administrative and Other Fees.  The Borrower agrees to pay the administrative
and other fees of the Administrative Agent as provided in the Fee Letter and as
may be otherwise agreed to in writing from time to time by the Borrower and the
Administrative Agent.


 


Section 3.6.  Computations.


 


Unless
otherwise expressly set forth herein, any accrued interest on any Loan, any
Fees or any other Obligations due hereunder shall be computed on the basis of a
year of 360 days and the actual number of days elapsed.


 


Section 3.7.  Usury.


 


In
no event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and,
if any such payment is paid by the Borrower or any other Loan Party or received
by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing
that the Borrower elects to have such excess sum returned to it forthwith.  It is the express intent of the parties hereto
that the Borrower not pay and the Lenders not receive, directly or indirectly,
in any manner whatsoever, interest in excess of that which may be lawfully paid
by the Borrower under Applicable Law. 
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this
Agreement is and shall be the interest specifically described in
Section 2.4.(a)(i) and (ii) and, with respect to Swingline
Loans, in Section 2.3.(c). 
Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, facility fees, closing fees,
letter of


 


40

















 


credit
fees, underwriting fees, default charges, late charges, funding or “breakage”
charges, increased cost charges, attorneys’ fees and reimbursement for costs
and expenses paid by the Administrative Agent or any Lender to third parties or
for damages incurred by the Administrative Agent or any Lender, in each case,
in connection with the transactions contemplated by this Agreement and the
other Loan Documents, are charges made to compensate the Administrative Agent
or any such Lender for underwriting or administrative services and costs or
losses performed or incurred, and to be performed or incurred, by the Administrative
Agent and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money.  All charges other than charges for the use of
money shall be fully earned and nonrefundable when due.


 


Section 3.8.  Statements of Account.


 


The
Administrative Agent will account to the Borrower monthly with a statement of
Loans, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the
Administrative Agent shall be deemed conclusive upon the Borrower absent
manifest error.  The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.


 


Section 3.9.  Defaulting Lenders.


 


(a)           Generally.  If any Lender shall become a Defaulting
Lender, then such Defaulting Lender’s right to participate in the
administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of any amendment,
consent or waiver of the terms of this Agreement or any other Loan Document, or
to direct any action or inaction of the Administrative Agent or to be taken
into account in the calculation of the Requisite Lenders shall be suspended
while such Lender remains a Defaulting Lender; provided, however, that the
foregoing shall not permit (i) an increase in such Lender’s Commitment or (ii) an
extension of the maturity date of such Lender’s Loans or other Obligations
owing to such Lender, in each of the cases described in clauses (i) and
(ii), without such Lender’s consent, or (iii) an extension of the
expiration date of a Letter of Credit beyond the Termination Date (except as
permitted under Section 2.2.(b)) or, with respect to any Letter of Credit
having an expiration date beyond the Termination Date as permitted by
Section 2.2.(b), an extension of the expiration date of such Letter of
Credit without such Lender’s consent if such Lender is directly and adversely
affected thereby.  If a Lender is a
Defaulting Lender because it has failed to make timely payment to the
Administrative Agent of any amount required to be paid to the Administrative
Agent hereunder (without giving effect to any notice or cure periods), then the
Administrative Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest.  No Commitment of
any Lender shall be increased or otherwise affected, and except as otherwise
expressly provided in this Section, performance by the Borrower of its
obligations hereunder and under the other Loan Documents shall not be excused
or otherwise modified, as a result of the operation of this Section. The rights
and remedies of the Borrower, the Administrative Agent, the Issuing Bank, the
Swingline Lender and the Lenders against a Defaulting Lender under this Section are
in addition to any other rights and remedies the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender and the Lenders may have against such
Defaulting Lender under this Agreement, any of the other Loan Documents,
Applicable Law or otherwise.


 


41
















 


(b)                                 Treatment of
Payments.  Any amount
paid by the Borrower for the account of a Defaulting Lender under this
Agreement or any other Loan Document will not be paid or distributed to such
Defaulting Lender, but will instead be applied by the Administrative Agent to
the making of payments from time to time in the following order of priority
until such Defaulting Lender has ceased to be a Defaulting Lender (in
accordance with subsection (i) below): first, to the payment
of any amounts owing by such Defaulting Lender to the Administrative Agent
under this Agreement; second, to the payment on a pro rata basis of any
amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline
Lender under this Agreement; third, if determined by the Administrative
Agent or requested by the Issuing Bank or the Swingline Lender, held as cash
collateral for such Defaulting Lender’s Commitment Percentage of the Letter of
Credit Liabilities then outstanding and for such Defaulting Lender’s Commitment
Percentage of the aggregate principal amount of the Swingline Loans then
outstanding, subject to the provisions of the immediately following subsection
(f); fourth, as the Borrower may request (so long as no Default or Event
of Default shall then exist) to the funding of any Loan in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by
this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, held in such account
as cash collateral for future funding obligations of the Defaulting Lender in
respect of any Loans under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the Issuing Bank or the Swingline Lender as a
result of any judgment of a court of competent jurisdiction obtained by any
Lender, the Issuing Bank or the Swingline Lender against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to
the payment of any amounts owing to the Borrower as a result of any judgment of
a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; and eighth, after the termination of
the Commitments and payment in full of all Obligations, to such Defaulting
Lender or as a court of competent jurisdiction may otherwise direct.


 


(c)                                  Fees.  During any period that a Lender is a Defaulting
Lender, such Defaulting Lender’s Commitment and outstanding Revolving Loans
shall be excluded for purposes of calculating any Fee payable to the Lenders
under Sections 3.5.(b) and 3.5.(c), and during such period the
Borrower shall not be required to pay, and such Defaulting Lender shall not be
entitled to receive, any such Fees otherwise payable to such Defaulting Lender
under such Sections.


 


(d)                                 Reallocation of
Letter of Credit and Swingline Exposure.  As promptly as possible once a Lender becomes
a Defaulting Lender or a Potential Defaulting Lender, the Administrative Agent
shall reallocate the Commitment Percentages of outstanding Letter of Credit
Liabilities and Swingline Loans among the Non-Defaulting Lenders in accordance
with their Commitment Percentages (determined exclusive of the Commitment of
any Defaulting Lender or Potential Defaulting Lender) but only (i) if no
Default or Event of Default exists, and (ii) to the extent that such
reallocation will not result in any Non-Defaulting Lender’s Commitment
Percentage (determined inclusive of the Commitment of any Defaulting Lender and
any Potential Defaulting Lender) of (A) the Letter of Credit Liabilities
exceeding such Non-Defaulting Lender’s Commitment Percentage of the L/C
Commitment Amount or (B) the aggregate outstanding principal amount of the
Swingline Loans exceeding such Non-Defaulting Lender’s Commitment Percentage of
the amount of the Swingline Commitment.


 


(e)                                  Borrowing
Requests.  While any
Lender is a Defaulting Lender or a Potential Defaulting Lender, the Borrower
authorizes each of the Administrative Agent, the Issuing Bank and the Swingline
Lender (which authorization is irrevocable and coupled with an interest) to
give, in such Person’s discretion, Notices of Revolving Borrowing pursuant to
Section 2.1. in such amounts and at such times as may be required to
(i) reimburse any Reimbursement Obligation that has become due and
payable, (ii) repay an outstanding Swingline Loan or (iii) cash
collateralize the Obligations of the Borrower in respect of outstanding Letters
of Credit in an amount equal to the aggregate amount of the obligations


 


42

















 


(contingent
or otherwise) of such Defaulting Lender or Potential Defaulting Lender in
respect of such Letters of Credit, in each case after giving effect to the
immediately preceding subsection (d).


 


(f)                                    Cash Collateral
for Letters of Credit and Swingline Loans.  All cash collateral and other credit support
provided pursuant to Section 2.2.(l) or
2.3.(f) or the immediately
preceding subsection (b) or (e) (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts with the Administrative Agent.  The Borrower hereby grants to (and subjects
to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Bank and the Lenders (including the Swingline
Lender), and agrees to maintain, a first priority security interest in all such
cash collateral and other credit support, and in all proceeds of the foregoing,
all as security for the Obligations to which such cash collateral and other
credit support may be applied pursuant to this Section.  Cash collateral and other credit support
provided under Section 2.2.(l) or
2.3.(f) or the immediately
preceding subsection (b) or (e), shall be held and applied to the
satisfaction of the specific Letter of Credit Obligations, Swingline Loans or
obligations to fund participations therein, prior to any other application of
such property as may be provided for herein. 
Such cash collateral and other credit support (or the appropriate
portion thereof) shall be released promptly following (i) the elimination
of the applicable Letter of Credit Obligations and Swingline Loans giving rise
thereto (including by the termination of the status of a Lender as a Defaulting
Lender), or (ii) the Administrative Agent’s good faith determination that
there exists excess cash collateral and other credit support, including without
limitation, as a result of a reallocation pursuant to the immediately preceding
subsection (d); provided, however, (x) cash collateral and
other credit support shall not be released if a Default or Event of Default
exists (and following application as provided in this subsection may be
otherwise applied in accordance with Section 10.5.) and (y) the Borrower, the Administrative Agent, the
Issuing Bank and the Swingline Lender may agree that such cash collateral and
other credit support shall not be released but instead held to support future
anticipated exposure with respect to Letters of Credit or Swingline Loans.


 


(g)                                 Purchase of
Defaulting Lender’s or Potential Defaulting Lender’s Commitment.  During any period that a Lender is a
Defaulting Lender or Potential Defaulting Lender, the Borrower may, by giving
written notice thereof to the Administrative Agent, such Defaulting Lender or
Potential Defaulting Lender, and the other Lenders, demand that such Defaulting
Lender or Potential Defaulting Lender assign its Commitment to an Eligible
Assignee subject to and in accordance with the provisions of Section 12.6.(b). 
No party hereto shall have any obligation whatsoever to initiate any
such replacement or to assist in finding an Eligible Assignee.  In addition, any Lender who is a
Non-Defaulting Lender may, but shall not be obligated, in its sole discretion,
to acquire the face amount of all or a portion of such Defaulting Lender’s or
Potential Defaulting Lender’s Commitment via an assignment subject to and in
accordance with the provisions of Section 12.6.(b).  In connection with any such assignment, such
Defaulting Lender or Potential Defaulting Lender shall promptly execute all
documents reasonably requested to effect such assignment, including an
appropriate Assignment and Acceptance and, notwithstanding Section 12.6.(b), shall pay to the Administrative
Agent an assignment fee in the amount of $10,000.  No such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient with any applicable
amounts held pursuant to the immediately preceding subsection (f), upon
distribution thereof as appropriate (which may be outright payment, purchases
by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender or Potential Defaulting
Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender or Potential Defaulting Lender
to the Administrative Agent, the Issuing Bank or any Lender hereunder (and
interest accrued thereon), and (y) acquire (and fund as appropriate) such
Defaulting Lender’s or Potential Defaulting Lender’s full pro rata share of all
Loans and participations in Letters of Credit and Swingline Loans.  Notwithstanding 


 


43

















 


the
foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender or Potential Defaulting Lender hereunder shall become
effective under Applicable Law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender or Potential Defaulting Lender, as applicable, for all
purposes of this Agreement until such compliance occurs.


 


(h)                                 Termination of
Defaulting Lender’s or Potential Defaulting Lender’s Commitment.  During any period that a Lender is a
Defaulting Lender or Potential Defaulting Lender, the Borrower may terminate in
full the Commitment of such Defaulting Lender or Potential Defaulting Lender by
giving notice to such Defaulting Lender or Potential Defaulting Lender and the
Administrative Agent (such termination, a “Defaulting Lender Termination”) so
long as on the effective date of such Defaulting Lender Termination and after
giving effect thereto and to any repayment of Revolving Loans in connection
therewith: (i) no Default or Event of Default exists (unless the Requisite
Lenders otherwise consent to such Defaulting Lender Termination), (ii) no
Revolving Loans shall be outstanding, and (iii) all obligations of such
Defaulting Lender or Potential Defaulting Lender in respect of any existing
Letter of Credit Obligations and Swingline Loans have been reallocated in
accordance with the immediately preceding subsection (d).  Each such notice shall specify the effective
date of such Defaulting Lender Termination (the “Defaulting Lender Termination
Date”), which shall be not less than 5 Business Days (or such shorter period as
agreed to by the Administrative Agent and such Defaulting Lender or Potential
Defaulting Lender) after the date on which such notice is delivered to such
Defaulting Lender or Potential Defaulting Lender and the Administrative Agent.  On each such Defaulting Lender Termination
Date, (i) the Commitments of such Defaulting Lender or Potential
Defaulting Lender shall be reduced to zero, (ii) such Defaulting Lender or
Potential Defaulting Lender shall cease to be a “Lender” hereunder (provided
that any Defaulting Lender or Potential Defaulting Lender shall continue to be
entitled to the indemnification provisions contained herein, but only with
respect to matters arising prior to the applicable Defaulting Lender
Termination Date) and (iii) the Commitments of all other Lenders shall
remain unchanged.


 


(i)                                     Cure.  If the Borrower, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree in writing in their discretion
that a Lender that is a Defaulting Lender or a Potential Defaulting Lender
should no longer be deemed to be a Defaulting Lender or Potential Defaulting
Lender, as the case may be, the Administrative Agent will so notify the
Lenders, whereupon as of the effective date specified in such notice and
subject to any conditions set forth therein, such Lender will, to the extent
applicable, purchase such portion of outstanding Revolving Loans of the other
Lenders and make such other adjustments as the Administrative Agent may
determine to be necessary to cause the interest of the Lenders in the Revolving
Loans, Swingline Loans and Letter of Credit Liabilities to be on a pro rata
basis in accordance with their respective Commitment Percentages, whereupon
such Lender will cease to be a Defaulting Lender or Potential Defaulting Lender;
provided that no adjustments will be made retroactively with respect to
fees accrued or payments made by or on behalf of the Borrower while such Lender
was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no cure by a Lender
under this subsection of its status as a Defaulting Lender or Potential
Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from such Lender’s having been a Defaulting Lender or
Potential Defaulting Lender.


 


Section 3.10.  Taxes; Foreign Lenders.


 


(a)                                  Taxes Generally.  All payments by the Borrower of principal of,
and interest on, the Loans and all other Obligations shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding Excluded Taxes (such non-excluded items being collectively called “Taxes”).  If any withholding or deduction from any


 


44

















 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


fees
and disbursements of any law firm or other external counsel and the allocated
cost of internal legal services and all disbursements of internal counsel) of
the Administrative Agent.  The obligation
of the Lenders under this Section shall survive the termination of the
Commitments, repayment of all Obligations and the resignation or replacement of
the Administrative Agent.


 


(d)                                 USA Patriot Act
Notice; Compliance.  In order
for the Administrative Agent to comply with the USA Patriot Act of 2001 (Public
Law 107-56), prior to any Lender or Participant that is organized under the
laws of a jurisdiction outside of the United States of America becoming a party
hereto, the Administrative Agent may request, and such Lender or Participant
shall provide to the Administrative Agent, its name, address, tax
identification number and/or such other identification information as shall be
necessary for the Administrative Agent to comply with federal law.


 


ARTICLE IV. YIELD PROTECTION, ETC.


 


Section 4.1.  Additional Costs; Capital Adequacy.


 


(a)                                  Capital
Adequacy.  If any
Lender determines that compliance with any law or regulation or with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) becoming effective after the date of
this Agreement affects or would affect the amount of capital required or
expected to be maintained by such Lender, or any corporation controlling such
Lender, as a consequence of, or with reference to, such Lender’s Commitments or
its making or maintaining Loans or participating in Letters of Credit below the
rate which such Lender or such corporation controlling such Lender could have
achieved but for such compliance (taking into account the policies of such
Lender or such corporation with regard to capital), then the Borrower shall,
from time to time, within thirty (30) days after written demand by such Lender,
pay to such Lender additional amounts sufficient to compensate such Lender or
such corporation controlling such Lender to the extent that such Lender
determines such increase in capital is allocable to such Lender’s obligations
hereunder.


 


(b)                                 Additional
Costs.  In addition to, and not in
limitation of the immediately preceding subsection (a), the Borrower shall
promptly pay to the Administrative Agent for the account of a Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs incurred by such Lender that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation
to make any LIBOR Loans hereunder, any reduction in any amount receivable by
such Lender under this Agreement or any of the other Loan Documents in respect
of any of such LIBOR Loans or such obligation or the maintenance by such Lender
of capital in respect of its LIBOR Loans or its Commitments (such increases in
costs and reductions in amounts receivable being herein called “Additional
Costs”), resulting from any Regulatory Change that:  (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such LIBOR Loans or its Commitments (other than
Excluded Taxes), or (ii) imposes or modifies any reserve, special deposit
or similar requirements (other than Regulation D of the Board of Governors
of the Federal Reserve System or other similar reserve requirement applicable
to any other category of liabilities or category of extensions of credit or
other assets by reference to which the interest rate on LIBOR Loans is
determined to the extent utilized when determining LIBOR for such Loans)
relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, or other credit extended by, or any other acquisition
of funds by such Lender (or its parent corporation), or any commitment of such
Lender (including, without limitation, the Commitments of such Lender
hereunder) or (iii) has or would have the effect of reducing the rate of
return on capital of such Lender to a level below that which such Lender could
have achieved but for such Regulatory Change (taking into consideration such
Lender’s policies with respect to capital adequacy).


 


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(c)                                  Lender’s
Suspension of LIBOR Loans.  Without limiting the effect of the provisions
of the immediately preceding subsection (a) and (b), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on
or measured by the excess above a specified level of the amount of a category
of deposits or other liabilities of such Lender that includes deposits by
reference to which the interest rate on LIBOR Loans is determined as provided
in  this Agreement or a category of
extensions of credit or other assets of such Lender that includes LIBOR Loans
or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets that it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended until such Regulatory Change ceases to be
in effect (in which case the provisions of Section 4.5. shall apply).


 


(d)                                 Additional
Costs in Respect of Letters of Credit.  Without limiting the obligations of the
Borrower under the preceding subsections of this Section (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable
any tax, reserve, special deposit, capital adequacy or similar requirement
against or with respect to or measured by reference to Letters of Credit and
the result shall be to increase the cost to the Issuing Bank of issuing (or any
Lender of purchasing participations in) or maintaining its obligation hereunder
to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Issuing Bank or any Lender hereunder in respect of any
Letter of Credit, then, upon demand by the Issuing Bank or such Lender, the
Borrower shall pay promptly, and in any event within 3 Business Days of demand,
to the Issuing Bank or, in the case of such Lender, to the Administrative Agent
for the account of such Lender, from time to time as specified by the Issuing
Bank or such Lender, such additional amounts as shall be sufficient to
compensate the Issuing Bank or such Lender for such increased costs or
reductions in amount.


 


(e)                                  Notification
and Determination of Additional Costs.  Each of the Administrative Agent, Issuing
Bank, each Lender, and each Participant, as the case may be, agrees to notify
the Borrower of any event occurring after the Agreement Date entitling the
Administrative Agent, the Issuing Bank, such Lender or such Participant to
compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, that the failure of the
Administrative Agent, the Issuing Bank, any Lender or any Participant to give
such notice shall not release the Borrower from any of its obligations
hereunder (and in the case of a Lender, to the Administrative Agent); provided,
further, that notwithstanding the foregoing provisions of this Section, the
Agent or a Lender, as the case may be, shall not be entitled to compensation
for any such amount relating to any period ending more than six months prior to
the date that the Agent or such Lender, as applicable, first notifies the
Borrower in writing thereof or for any amounts resulting from a change by any Lender
of its Lending Office (other than changes required by Applicable Law). The
Administrative Agent, the Issuing Bank, each Lender and each Participant, as
the case may be, agrees to furnish to the Borrower (and in the case of the
Issuing Bank, a Lender or a Participant to the Administrative Agent as well) a
certificate setting forth the basis and amount of each request for compensation
under this Section.  Determinations by
the Administrative Agent, the Issuing Bank, such Lender, or such Participant,
as the case may be, of the effect of any Regulatory Change shall be conclusive
and binding for all purposes, absent manifest error.


 


Section 4.2.  Suspension of LIBOR Loans.


 


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


 


(a)                                  the
Administrative Agent reasonably determines (which determination shall be
conclusive absent manifest error) that quotations of interest rates for the
relevant deposits referred to in the definition of LIBOR are not being provided
in the relevant amounts or for the relevant


 


47

















 


maturities
for purposes of determining rates of interest for LIBOR Loans as provided
herein or is otherwise unable to determine LIBOR; or


 


(b)                                 the
Administrative Agent reasonably determines (which determination shall be
conclusive absent manifest error) that the relevant rates of interest referred
to in the definition of LIBOR upon the basis of which the rate of interest for
LIBOR Loans for such Interest Period is to be determined are not likely to
adequately cover the cost to any Lender of making or maintaining LIBOR Loans
for such Interest Period;


 


then
the Administrative Agent shall give the Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, all of the Lenders,
in the case of the immediately preceding clause (a), and any Lender affected
thereby, in the case of the immediately preceding clause (b), shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans unless and until such Lender gives notice as
provided in Section 4.5.
that such condition no longer exists, and, so long as such condition remains in
effect, such Lender’s LIBOR Loans shall be treated in accordance with Section 4.5.


 


Section 4.3.  Illegality.


 


Notwithstanding
any other provision of this Agreement, if any Lender shall determine (which
determination shall be conclusive and binding) that it is unlawful due to a
change in (or the interpretation of), or adoption of, any law or regulation
from a Governmental Authority becoming effective after the date of this
Agreement for such Lender to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy of such notice to the Administrative Agent) and such Lender’s
obligation to make or Continue, or to Convert Loans of any other Type into,
LIBOR Loans shall be suspended until such time as such Lender may again make
and maintain LIBOR Loans (in which case the provisions of Section 4.5. shall be applicable).


 


Section 4.4.  Compensation.


 


The
Borrower shall pay to the Administrative Agent for the account of each Lender,
upon the request of the Administrative Agent, such amount or amounts as the
Administrative Agent shall determine in its sole discretion shall be sufficient
to compensate such Lender for any loss, cost or expense attributable to:


 


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


 


(b)                                 any failure by
the Borrower for any reason (including, without limitation, the failure of any
of the applicable conditions precedent specified in Article 5.2. to be
satisfied) to borrow a LIBOR Loan from such Lender on the date for such
borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR
Loan on the requested date of such Conversion or Continuation.


 


Not
in limitation of the foregoing, such compensation shall include, without
limitation, in the case of a LIBOR Loan, an amount equal to the then present
value of (A) the amount of interest that would have accrued on such LIBOR
Loan for the remainder of the Interest Period at the rate applicable to such
LIBOR Loan, less (B) the amount of interest that would accrue on the same
LIBOR Loan for the same period if LIBOR were set on the date on which such
LIBOR Loan was repaid, prepaid or Converted or the date on which the Borrower
failed to borrow, Convert or Continue such LIBOR Loan calculating present 


 


48

















 


value
by using as a discount rate LIBOR quoted on such date.  Upon the Borrower’s request, the
Administrative Agent shall provide the Borrower with a statement setting forth
the basis for requesting such compensation and the method for determining the
amount thereof.  Any such statement shall
be conclusive absent manifest error.


 


Section 4.5.  Treatment of Affected Loans.


 


If
the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert
Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(c), Section 4.2. or Section 4.3. then such Lender’s
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for LIBOR Loans (or, in
the case of a Conversion required by Section 4.1.(c), Section 4.2.,
or Section 4.3. on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1., Section 4.2. or Section 4.3. that gave rise to
such Conversion no longer exist:


 


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


 


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


 


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


 


Section 4.6.  Affected Lenders.


 


If
(a) a Lender requests compensation pursuant to Section 3.10. or 4.1., and the Requisite Lenders are not also doing the same, or
(b) the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b) or 4.3. but the obligation of the
Requisite Lenders shall not have been suspended under such Sections, or
(c) a Lender does not vote in favor of any amendment, modification or
waiver to this Agreement or any other Loan Document which, pursuant to Section 12.7., requires the vote of such
Lender, and the Requisite Lenders shall have voted in favor of such amendment,
modification or waiver then, so long as there does not then exist any Default
or Event of Default, the Borrower may demand that such Lender (the “Affected
Lender”), and upon such demand the Affected Lender shall promptly, assign its
Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.6.(b) for
a purchase price equal to the aggregate principal balance of all Loans then
owing to the Affected Lender plus any accrued but unpaid interest thereon and
accrued but unpaid fees owing to the Affected Lender, or any other amount as
may be mutually agreed upon by such Affected Lender and Eligible Assignee.  Each of the Administrative Agent and the
Affected Lender shall reasonably cooperate in effectuating the replacement of
such Affected Lender under this Section, but at no time shall the
Administrative Agent, such Affected


 


49

















 


Lender
nor any other Lender nor any Titled Agent be obligated in any way whatsoever to
initiate any such replacement or to assist in finding an Eligible
Assignee.  The exercise by the Borrower
of its rights under this Section shall be at the Borrower’s sole cost and
expense and at no cost or expense to the Administrative Agent, the Affected
Lender or any of the other Lenders.  The
terms of this Section shall not in any way limit the Borrower’s obligation
to pay to any Affected Lender compensation owing to such Affected Lender
pursuant to this Agreement (including, without limitation, pursuant to
Sections 3.10., 4.1. or 4.4.) with respect to any period up to the date of replacement.


 


Section 4.7.  Change of Lending Office.


 


Each
Lender agrees that it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or
circumstances described in Sections 3.10., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.


 


Section 4.8.  Assumptions Concerning Funding of LIBOR
Loans.


 


Calculation
of all amounts payable to a Lender under this Article shall be made as
though such Lender had actually funded LIBOR Loans through the purchase of
deposits in the relevant market bearing interest at the rate applicable to such
LIBOR Loans in an amount equal to the amount of the LIBOR Loans and having a
maturity comparable to the relevant Interest Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable
under this Article.


 


ARTICLE V. CONDITIONS
PRECEDENT


 


Section 5.1.  Initial Conditions Precedent.


 


The
obligation of the Lenders to effect or permit the occurrence of the first
Credit Event hereunder, whether as the making of a Loan or the issuance of a
Letter of Credit, is subject to the satisfaction or waiver of the following
conditions precedent:


 


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


 


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


 


(ii)                                  Revolving Notes
executed by the Borrower, payable to each Lender (other than any Lender that
has requested that it not receive a Revolving Note) and complying with the
terms of Section 2.10.(a) and the Swingline Note executed by the
Borrower;


 


(iii)                               the Guaranty
executed by each of the Guarantors initially to be a party thereto;


 


(iv)                              an opinion of
Sullivan & Worcester LLP, and opinion of Venable LLP, special Maryland
counsel, in each case, counsel to the Borrower and the other Loan Parties,
addressed to the Administrative Agent and the Lenders and covering the matters
set forth in Exhibit J;


 


(v)                                 the certificate
or articles of incorporation or formation, articles of organization,
certificate of limited partnership, declaration of trust or other comparable
organizational


 


50

















 


instrument
(if any) of each Loan Party certified as of a recent date by the Secretary of
State of the state of formation of such Loan Party;


 


(vi)                              a certificate
of good standing (or certificate of similar meaning) with respect to each Loan
Party issued as of a recent date by the Secretary of State of the state of
formation of each such Loan Party and certificates of qualification to transact
business or other comparable certificates issued as of a recent date by each
Secretary of State (and any state department of taxation, as applicable) of
each state in which such Loan Party is required to be so qualified and where
failure to be so qualified could reasonably be expected to have a Material
Adverse Effect;


 


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


 


(viii)                        copies
certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party of (A) the by-laws of
such Loan Party, if a corporation, the operating agreement, if a limited
liability company, the partnership agreement, if a limited or general
partnership, or other comparable document in the case of any other form of
legal entity and (B) all corporate, partnership, member or other necessary
action taken by such Loan Party to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;


 


(ix)                                a Compliance
Certificate calculated as of the Effective Date on a pro forma basis for the
Borrower’s fiscal quarter ended June 30, 2010;


 


(x)                                   a Transfer
Authorizer Designation Form effective as of the Agreement Date;


 


(xi)                                the Fee Letter;


 


(xiii)                          evidence that
the Fees, if any, then due and payable under Section 3.5., together with
all other fees, expenses and reimbursement amounts due and payable to the
Administrative Agent and any of the Lenders, including without limitation, the
fees and expenses of counsel to the Administrative Agent, have been paid;


 


(xiv)                         insurance
certificates, or other evidence, providing that the insurance coverage required
under Section 7.5. (including, without limitation, both property and
liability insurance) is in full force and effect;


 


(xv)                            evidence that
all indebtedness, liabilities or obligations owing by the Loan Parties under
the Existing Credit Agreement shall have been paid in full and all Liens, if
any, securing such indebtedness, liabilities or other obligations have been
released;


 


(xvi)                         such other
documents and instruments as the Administrative Agent, or any Lender through
the Administrative Agent, may reasonably request; and


 


(b)                                 In the good
faith judgment of the Administrative Agent:


 


51
















 


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


 


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


 


(iii)                               the Borrower
and its Subsidiaries shall have received all approvals, consents and waivers,
and shall have made or given all necessary filings and notices as shall be
required to consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of (A) any
Applicable Law or (B) any agreement, document or instrument to which any
Loan Party is a party or by which any of them or their respective properties is
bound, except for such approvals, consents, waivers, filings and notices the
receipt, making or giving of which could not reasonably be likely to
(A) have a Material Adverse Effect, or (B) restrain or enjoin impose
materially burdensome conditions on, or otherwise materially and adversely
affect the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;


 


(iv)                              the Borrower
and each other Loan Party shall have provided all information requested by the
Administrative Agent and each Lender may request in order to comply with the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)); and


 


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


 


Section 5.2.  Conditions Precedent to All Loans and Letters
of Credit.


 


The
obligations of (i) Lenders to make any Loans and (ii) the Issuing
Bank to issue Letters of Credit are each subject to the further conditions
precedent that: (a) no Default or Event of Default shall exist as of the
date of the making of such Loan or date of issuance of such Letter of Credit or
would exist immediately after giving effect thereto, and no violation of the
limits described in Section 2.14. would occur after giving effect thereto;
(b) the representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of them is a
party, shall be true and correct on and as of the date of the making of such Loan
or date of issuance of such Letter of Credit with the same force and effect as
if made on and as of such date except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted hereunder; (c) in the case of the borrowing of
Revolving Loans, the Administrative Agent shall have received a timely Notice
of Borrowing, or in the case of a Swingline Loan, the Swingline Lender shall
have received a timely Notice of Swingline Borrowing and (d) in the case
of the issuance of a Letter of Credit or the making of a Swingline Loan, no
Lender shall be a Defaulting Lender or Potential Defaulting Lender; provided,
however, in the case of the issuance of a Letter of Credit, the Issuing Bank
may waive this condition precedent on behalf of itself and all Lenders if cash
collateral or other credit support satisfactory to the


 


52

















 


Issuing
Bank, in its sole and absolute discretion, has been pledged or otherwise
provided to the Administrative Agent for the benefit of the Issuing Bank in
respect of such Defaulting Lender’s or Potential Defaulting Lender’s
participation in such Letter of Credit in accordance with Section 2.2.(l);
provided, further, that in the case of a Swingline Loan, the Swingline Lender
may waive this condition precedent on behalf of itself and all Lenders if cash
collateral or other credit support satisfactory to the Swingline Lender, in its
sole and absolute discretion, has been pledged or otherwise provided to the
Administrative Agent for the benefit of the Swingline Lender in respect of such
Defaulting Lender’s or Potential Defaulting Lender’s Commitment Percentage of
the aggregate principal amount of the Swingline Loans in accordance with
Section 2.3.(f). Each Credit Event shall constitute a certification by the
Borrower to the effect set forth in the preceding sentence (both as of the date
of the giving of notice relating to such Credit Event and, unless the Borrower
otherwise notifies the Administrative Agent prior to the date of such Credit
Event, as of the date of the occurrence of such Credit Event).  In addition, the Borrower shall be deemed to
have represented to the Administrative Agent and the Lenders at the time such
Loan is made or such Letter of Credit is issued that all conditions to the
making of such Loan or issuing of such Letter of Credit contained in this
Article V. have been satisfied.


 


ARTICLE VI. REPRESENTATIONS
AND WARRANTIES


 


Section 6.1.  Representations and Warranties.


 


In
order to induce the Administrative Agent and each Lender to enter into this Agreement
and to make Loans and, in the case of the Issuing Bank, to issue Letters of
Credit, the Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each Lender as follows:


 


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


 


(b)                                 Ownership
Structure.  Part I
of Schedule 6.1.(b) is, as of the Agreement Date, a complete and
correct list of all Subsidiaries of the Borrower setting forth for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding any Equity Interest in such Subsidiary,
(iii) the nature of the Equity Interests held by each such Person,
(iv) the percentage of ownership of such Subsidiary represented by such
Equity Interests and (v) whether such Subsidiary is a Material Subsidiary
and/or an Excluded Subsidiary.  As of the
Agreement Date, except as disclosed in such Schedule, (A) each of the
Borrower and its Subsidiaries owns, free and clear of all Liens, and has the
unencumbered right to vote, all outstanding Equity Interests in each Person
shown to be held by it on such Schedule, (B) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (C) there are no
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders’ or
voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock
of any class, or partnership or other ownership interests of any type in, any
such Person.  As of the Agreement Date,
Part II of Schedule 6.1.(b) correctly sets forth all Unconsolidated
Affiliates of the Borrower, including the correct legal name of such Person,
the type of legal entity which each such Person is, and all Equity Interests in
such Person held directly or indirectly by the Borrower.


 


53

















 


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


 


(d)                                 Compliance of
Loan Documents with Laws.  The
execution, delivery and performance of this Agreement,  the other Loan Documents to which any Loan
Party is a party and of the Fee Letter in accordance with their respective
terms and the borrowings and other extensions of credit hereunder do not and
will not, by the passage of time, the giving of notice, or both:  (i) require any Governmental Approval or
violate any Applicable Law (including all Environmental Laws) relating to the
Borrower or any other Loan Party; (ii) conflict with, result in a breach
of or constitute a default under the organizational documents of any Loan
Party, or any indenture, agreement or other instrument to which the Borrower or
any other Loan Party is a party or by which it or any of its respective
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Loan Party other than in favor of the Administrative
Agent for its benefit and the benefit of the Lenders and the Issuing Bank.


 


(e)                                  Compliance with
Law; Governmental Approvals.  Each of the Borrower, the other Loan Parties
and the other Subsidiaries is in compliance with each Governmental Approval and
all other Applicable Laws relating to it except for noncompliances which, and
Governmental Approvals the failure to possess which, could not, individually or
in the aggregate, reasonably be expected to cause a Default or Event of Default
or have a Material Adverse Effect.


 


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


 


(g)                                  Existing
Indebtedness. 
Schedule 6.1.(g) is, as of the Agreement Date, a complete and
correct listing of all Indebtedness (including all Guarantees) of each of the
Borrower, the other Loan Parties and the other Subsidiaries, and if such
Indebtedness is secured by any Lien, a description of all of the property subject
to such Lien.  As of the Agreement Date,
the Borrower, the other Loan Parties and the other Subsidiaries have performed
and are in compliance with all of the terms of such Indebtedness and all
instruments and agreements relating thereto, and no default or event of
default, or event or condition which with the giving of notice, the lapse of
time, or both, would constitute a default or event of default, exists with
respect to any such Indebtedness.


 


(h)                                 Material
Contracts. 
Schedule 6.1.(h) is, as of the Agreement Date, a true, correct
and complete listing of all Material Contracts. 
Each of the Borrower, the other Loan Parties and the other Subsidiaries
that is party to any Material Contract has performed and is in compliance with
all of the


 


54

















 


terms
of such Material Contract, and no default or event of default, or event or
condition which with the giving of notice, the lapse of time, or both, would
constitute such a default or event of default, exists with respect to any such
Material Contract.


 


(i)                                     Litigation.  Except as set forth on Schedule 6.1.(i),
there are no actions, suits or proceedings pending (nor, to the knowledge of
any Loan Party, are there any actions, suits or proceedings threatened, nor is
there any basis therefor) against or in any other way relating adversely to or
affecting the Borrower, any other Loan Party, any other Subsidiary or any of
their respective property in any court or before any arbitrator of any kind or
before or by any other Governmental Authority which, (i) could reasonably
be expected to have a Material Adverse Effect or (ii) in any manner draws
into question the validity or enforceability of any Loan Documents or the Fee
Letter.  There are no strikes, slow
downs, work stoppages or walkouts or other labor disputes in progress or
threatened relating to, any Loan Party or any other Subsidiary.


 


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


 


(k)                                 Financial
Statements.  The
Borrower has furnished to each Lender copies of (i) the audited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
for the fiscal year ended December 31, 2009, and the related audited
consolidated statements of operations, shareholders’ equity and cash flow for
the fiscal year ended on such date, with the opinion thereon of Ernst &Young
LLP, and (ii) the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries for the fiscal quarter ended June 30, 2010,
and the related unaudited consolidated statements of operations, and cash flow
of the Borrower and its consolidated Subsidiaries for the fiscal quarter period
ended on such date.  Such balance sheets
and statements (including in each case related schedules and notes) are
complete and correct in all material respects and present fairly, in accordance
with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its consolidated
Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments).  Neither the Borrower nor any of its Subsidiaries
has on the Agreement Date any material contingent liabilities, liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or
forward anticipated losses from any unfavorable commitments that would be
required to be set forth in its financial statements or notes thereto, except
as referred to or reflected or provided for in said financial statements.


 


(l)                                     No Material
Adverse Change.  Since December 31,
2009, there has been no material adverse change in the consolidated financial
condition, results of operations, business or prospects of the Borrower and its
consolidated Subsidiaries taken as a whole. 
Each of the Borrower, the other Loan Parties and the other Subsidiaries
is Solvent.


 


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


 


55

















 


(n)                                 ERISA.


 


(i)                                     Each Benefit
Arrangement is in compliance with the applicable provisions of ERISA, the
Internal Revenue Code and other Applicable Laws in all material respects.  Except with respect to Multiemployer Plans,
each Qualified Plan (A) has received a favorable determination from the
Internal Revenue Service applicable to such Qualified Plan’s current remedial
amendment cycle (as defined in Revenue Procedure 2007-44 or “2007-44” for
short), (B) has timely filed for a favorable determination letter from the
Internal Revenue Service during its staggered remedial amendment cycle (as
defined in 2007-44) and such application is currently being processed by the
Internal Revenue Service, (C) had filed for a determination letter prior
to its “GUST remedial amendment period” (as defined in 2007-44) and received
such determination letter and the staggered remedial amendment cycle first
following the GUST remedial amendment period for such Qualified Plan has not
yet expired, or (D) is maintained under a prototype plan and may rely upon
a favorable opinion letter issued by the Internal Revenue Service with respect
to such prototype plan.  To the best
knowledge of the Borrower, nothing has occurred which would cause the loss of
its reliance on each Qualified Plan’s favorable determination letter or opinion
letter.


 


(ii)                                  With respect to
any Benefit Arrangement that is a retiree welfare benefit arrangement, all
amounts have been accrued on the applicable ERISA Group’s financial statements
in accordance with FASB ASC 715.  The “benefit
obligation” of all Plans does not exceed the “fair market value of plan assets”
for such Plans by more than $10,000,000 all as determined by and with such
terms defined in accordance with FASB ASC 715.


 


(iii)                               Except as could
not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect: (i) no ERISA Event has occurred or is expected to
occur; (ii) there are no pending, or to the best knowledge of the
Borrower, threatened, claims, actions or lawsuits or other action by any
Governmental Authority, plan participant or beneficiary with respect to a
Benefit Arrangement; (iii) there are no violations of the fiduciary
responsibility rules with respect to any Benefit Arrangement; and
(iv) no member of the ERISA Group has engaged in a non-exempt “prohibited
transaction,” as defined in Section 406 of ERISA and Section 4975 of
the Internal Revenue Code, in connection with any Plan, that would subject any
member of the ERISA Group to a tax on prohibited transactions imposed by
Section 502(i) of ERISA or Section 4975 of the Internal Revenue
Code.


 


(o)                                 Absence of
Default.  None of the Loan Parties or
any of the other Subsidiaries is in default under its certificate or articles
of incorporation or formation, bylaws, partnership agreement or other similar
organizational documents, and no event has occurred, which has not been
remedied, cured or waived: 
(i) which constitutes a Default or an Event of Default; or
(ii) which constitutes, or which with the passage of time, the giving of
notice, or both, would constitute, a default or event of default by, any Loan
Party or any other Subsidiary under any agreement (other than this Agreement)
or judgment, decree or order to which any such Person is a party or by which
any such Person or any of its respective properties may be bound where such
default or event of default could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.


 


(p)                                 Environmental
Laws.  In the ordinary course of
business and from time to time each of the Borrower, each other Loan Party and
each other Subsidiary conducts reviews of the effect of Environmental Laws on
its respective business, operations and properties, including without
limitation, its respective Properties. 
Each of the Borrower, each other Loan Party and the other Subsidiary:
(i) is in compliance with all Environmental Laws applicable to its
business, operations and the Properties, (ii) has obtained all
Governmental Approvals which are required under Environmental Laws, and each
such


 


56

















 


Governmental
Approval is in full force and effect, and (iii) is in compliance with all
terms and conditions of such Governmental Approvals, where with respect to each
of the immediately preceding clauses (i) through (iii) the failure to
obtain or to comply with could reasonably be expected to have a Material
Adverse Effect.  Except for any of the
following matters that could not reasonably be expected to have a Material
Adverse Effect, no Loan Party has any knowledge of, or has received notice of,
any past, present, or pending releases, events, conditions, circumstances,
activities, practices, incidents, facts, occurrences, actions, or plans that,
with respect to any Loan Party or any other Subsidiary, their respective
businesses, operations or with respect to the Properties, may:  (i) cause or contribute to an actual or
alleged violation of or noncompliance with Environmental Laws, (ii) cause
or contribute to any other potential common-law or legal claim or other
liability, or (iii) cause any of the Properties to become subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law or require the filing or recording of any notice, approval or
disclosure document under any Environmental Law and, with respect to the
immediately preceding clauses (i) through (iii) is based on or
related to the on-site or off-site manufacture, generation, processing,
distribution, use, treatment, storage, disposal, transport, removal, clean up
or handling, or the emission, discharge, release or threatened release of any
wastes or Hazardous Material, or any other requirement under Environmental
Law.  There is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
mandate, order, lien, request, investigation, or proceeding pending or, to the
Borrower’s knowledge after due inquiry, threatened, against the Borrower, any
other Loan Party or any other Subsidiary relating in any way to Environmental
Laws which reasonably could be expected to have a Material Adverse Effect.  None of the Properties is listed on or
proposed for listing on the National Priority List promulgated pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
and its implementing regulations, or any state or local priority list
promulgated pursuant to any analogous state or local law.  No Hazardous Materials have been transported,
released, discharged or disposed on any of the Properties other than
(x) in compliance with all applicable Environmental Laws or (y) as
could not reasonably be expected to have a Material Adverse Effect.


 


(q)                                 Investment
Company.  None of the Borrower, any
other Loan Party or any other Subsidiary is (i) an “investment company” or
a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, or (ii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow
money or obtain other extensions of credit or to consummate the transactions
contemplated by this Agreement or to perform its obligations under any Loan
Document to which it is a party.


 


(r)                                    Margin Stock.  None of the Borrower, any other Loan Party or
any other Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying “margin stock” within
the meaning of Regulation U of the Board of Governors of the Federal
Reserve System.


 


(s)                                   Affiliate
Transactions.  Except as
permitted by Section 9.8. or as otherwise set forth on Schedule 6.1.(s),
none of the Borrower, any other Loan Party or any other Subsidiary is a party
to or bound by any agreement or arrangement 
with any Affiliate.


 


(t)                                    Intellectual
Property.  Each of the
Loan Parties and each other Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all patents, licenses, franchises,
trademarks, trademark rights, service marks, service mark rights,  trade names, trade name rights, trade secrets
and copyrights (collectively, “Intellectual Property”) necessary to the conduct
of its businesses, without known conflict with any patent, license, franchise,
trademark, trademark right, service mark, service mark right, trade secret,
trade name, copyright, or other proprietary right of any other Person except
for such Intellectual Property, the absence of which, and for conflicts which,
could not reasonably be expected to have a Material Adverse Effect. Each of the
Loan Parties and each other Subsidiary has taken all such


 


57

















 


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


 


(u)                                 Business.  As of the Agreement Date, the Borrower and
its Subsidiaries are engaged substantially in the business of acquiring,
owning, operating and developing Properties leased primarily to Eligible
Tenants, together with other business activities incidental thereto, as
currently in use at the Properties.


 


(v)                                 Broker’s Fees.  No broker’s or finder’s fee, commission or
similar compensation will be payable with respect to the transactions
contemplated hereby.  No other similar
fees or commissions will be payable by any Loan Party for any other services
rendered to the Borrower, any other Loan Party or any other Subsidiary
ancillary to the transactions contemplated hereby.


 


(w)                               Accuracy and
Completeness of Information.  All written information, reports and other
papers and data (other than financial projections and other forward looking
statements) furnished to the Administrative Agent or any Lender by, on behalf
of, or at the direction of, the Borrower, any other Loan Party or any other
Subsidiary were, at the time the same were so furnished, complete and correct
in all material respects, to the extent necessary to give the recipient a true
and accurate knowledge of the subject matter, or, in the case of financial
statements, present fairly, in accordance with GAAP consistently applied
throughout the periods involved, the financial position of the Persons involved
as at the date thereof and the results of operations for such periods (subject,
as to interim statements, to changes resulting from normal year end audit
adjustments and absence of full footnote disclosure).  All financial projections and other forward
looking statements prepared by or on behalf of the Borrower, any other Loan
Party or any other Subsidiary that have been or may hereafter be made available
to the Administrative Agent or any Lender were or will be prepared in good
faith based on reasonable assumptions. 
No fact is known to any Loan Party which has had, or may in the future
have (so far as any Loan Party can reasonably foresee), a Material Adverse
Effect which has not been set forth in the financial statements referred to in
Section 6.1.(k) or in such information, reports or other papers or
data or otherwise disclosed in writing to the Administrative Agent and the
Lenders.  No document furnished or
written statement made to the Administrative Agent or any Lender in connection
with the negotiation, preparation or execution of, or pursuant to, this
Agreement or any of the other Loan Documents contains or will contain any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary in order to make the statements contained therein not
misleading.


 


(x)                                 Not Plan
Assets; No Prohibited Transactions.  None of the assets of the Borrower, any other
Loan Party or any other Subsidiary constitutes “plan assets” within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder.  Assuming that no Lender
funds any amount payable by it hereunder with “plan assets,” as that term is
defined in 29 C.F.R. 2510.3-101, the execution, delivery and performance of
this Agreement and the other Loan Documents, and the extensions of credit and
repayment of amounts hereunder, do not and will not constitute “prohibited
transactions” under ERISA or the Internal Revenue Code.


 


(y)                                 OFAC.  None of the Borrower, any of the other Loan
Parties, any of the other Subsidiaries, or any other Affiliate of the Borrower:
(i) is a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the U.S. Department of the Treasury’s Office of


 


58

















 


Foreign
Assets Control (“OFAC”) available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml or as otherwise
published from time to time; (ii) is (A) an agency of the government
of a country, (B) an organization controlled by a country, or (C) a
person resident in a country that is subject to a sanctions program identified
on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml, or as otherwise
published from time to time, as such program may be applicable to such agency,
organization or person; or (iii) derives any of its assets or operating
income from investments in or transactions with any such country, agency,
organization or person; and none of the proceeds from any Loan, and none of the
Letters of Credit, will be used to finance any operations, investments or
activities in, or make any payments to, any such country, agency, organization,
or person.


 


(z)                                  Unencumbered
Assets; Unencumbered Mortgage Notes.  As of the Agreement Date, Part I of
Schedule 6.1.(z) is a correct and complete list of all Unencumbered
Assets and Part II of Schedule 6.1.(z) is a correct and complete
list of all Unencumbered Mortgage Notes. 
Each of the Properties included by the Borrower in calculations of
Unencumbered Asset Value satisfies all of the requirements contained in the
definition of “Unencumbered Asset”.  Each
of the promissory notes included by the Borrower in calculations of
Unencumbered Asset Value satisfies all of the requirements contained in the
definition of “Unencumbered Mortgage Note”.


 


Section 6.2.  Survival of Representations and Warranties, Etc.


 


All
statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party or any other Subsidiary
to the Administrative Agent or any Lender pursuant to or in connection with
this Agreement or any of the other Loan Documents (including, but not limited
to, any such statement made in or in connection with any amendment thereto or
any statement contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party prior to the Agreement
Date and delivered to the Administrative Agent or any Lender in connection with
the underwriting or closing the transactions contemplated hereby) shall
constitute representations and warranties made by the Borrower under this
Agreement.  All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date, the date
on which any extension of the Termination Date is effectuated pursuant to
Section 2.12.  and at and as
of the date of the occurrence of each Credit Event, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances expressly and specifically permitted hereunder.  All such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
Loan Documents and the making of the Loans and the issuance of the Letters of
Credit.


 


ARTICLE VII. AFFIRMATIVE
COVENANTS


 


For
so long as this Agreement is in effect, the Borrower shall comply with the
following covenants:


 


Section 7.1.  Preservation of Existence and Similar
Matters.


 


Except
as otherwise permitted under Section 9.4., the Borrower shall, and shall
cause each other Loan Party and each other Subsidiary to, preserve and maintain
its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.


 


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Section 7.2.  Compliance with Applicable Law and Material
Contracts.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, comply with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply could reasonably
be expected to have a Material Adverse Effect, and (b) all terms and
conditions of all Material Contracts to which it is a party.


 


Section 7.3.  Maintenance of Property.


 


In
addition to the requirements of any of the other Loan Documents, the Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to,
(a) protect and preserve all of its respective material properties, or
cause to be protected and preserved, including, but not limited to, all Intellectual
Property necessary to the conduct of its respective business, and maintain, or
cause to be maintained, in good repair, working order and condition all
tangible properties, ordinary wear and tear excepted, and (b) from time to
time make or cause to be made all needed and appropriate repairs, renewals,
replacements and additions to such properties, so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times.


 


Section 7.4.  Conduct of Business.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, carry on its respective businesses as described in Section 6.1.(u).


 


Section 7.5.  Insurance.


 


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


 


Section 7.6.  Payment of Taxes and Claims.


 


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


 


Section 7.7.  Books and Records; Inspections.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, keep proper books of record and account in which full, true and correct
entries shall be made of all dealings


 


60

















 


and
transactions in relation to its business and activities in accordance with GAAP
and Applicable Law.  The Borrower shall,
and shall cause each other Loan Party and each other Subsidiary to, permit
representatives of the Administrative
Agent or any Lender to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants (in the
presence of an officer of the Borrower if an Event of Default does not then
exist), all at such reasonable times during business hours and as often as may
reasonably be requested and so long as no Event of Default exists, with
reasonable prior notice.  The Borrower
shall be obligated to reimburse the Administrative Agent and the Lenders for
their costs and expenses incurred in connection with the exercise of their
rights under this Section only if such exercise occurs while a Default or
Event of Default exists.  If requested by
the Administrative Agent, the Borrower shall execute an authorization letter
addressed to its accountants authorizing the Administrative Agent or any Lender
to discuss the financial affairs of the Borrower, any other Loan Party or any
other Subsidiary with the Borrower’s accountants.


 


Section 7.8.  Use of Proceeds.


 


The
Borrower will use the proceeds of Loans only for the repayment of Indebtedness,
the acquisition of Properties, working capital needs and other general business
purposes.  The Borrower shall only use
Letters of Credit for the same purposes for which it may use the proceeds of
Loans.  The Borrower shall not, and shall
not permit any other Loan Party or any other Subsidiary to, use any part of
such proceeds, or use any Letter of Credit, to purchase or carry, or to reduce
or retire or refinance any credit incurred to purchase or carry, any margin
stock (within the meaning of Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System) or to extend credit to others
for the purpose of purchasing or carrying any such margin stock.


 


Section 7.9.  Environmental Matters.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, comply, or cause to be complied, with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse
Effect.  The Borrower shall comply, and
shall cause each other Loan Party and each other Subsidiary to comply, and the
Borrower shall use, and shall cause each other Loan Party and each other
Subsidiary to use, commercially reasonable efforts to cause all other Persons occupying,
using or present on the Properties to comply, with all Environmental Laws the
failure with which to comply could reasonably be expected to have a Material
Adverse Effect.  The Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, promptly take
all actions and pay or arrange to pay all costs necessary for it and for the
Properties to comply with all Environmental Laws and all Governmental Approvals
the failure with which to comply could reasonably be expected to have a Material
Adverse Effect, including actions to remove and dispose of all Hazardous
Materials and to clean up the Properties as required under Environmental
Laws.  The Borrower shall, and shall
cause each other Loan Party and each other Subsidiary to, promptly take, or
cause to be taken, all actions necessary to prevent the imposition of any Liens
on any of their respective properties arising out of or related to any
Environmental Laws.  Nothing in this Section shall
impose any obligation or liability whatsoever on the Administrative Agent or
any Lender.


 


Section 7.10.  Further Assurances.


 


At
the Borrower’s cost and expense and upon request of the Administrative Agent,
the Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent such further instruments, documents and
certificates, and do and cause to be done such further acts that may be
reasonably necessary or


 


61
















 


advisable
in the reasonable opinion of the Administrative Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan
Documents.


 


Section 7.11.  REIT Status.


 


The Borrower shall maintain its status as a REIT.


 


Section 7.12.  Exchange Listing.


 


The
Borrower shall maintain at least one class of common shares of the Borrower
having trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is subject to price quotations on The NASDAQ Stock Market’s
National Market System.


 


Section 7.13.  Guarantors.


 


(a)                                 Within thirty
(30) days of any Person becoming a Material
Subsidiary (other than an Excluded
Subsidiary)  after the
Agreement Date, the Borrower shall deliver to the Administrative Agent each of
the following in form and substance satisfactory to the Administrative Agent:
(i) an Accession Agreement executed by such Subsidiary and (ii) the
items that would have been delivered under subsections (iv) through
(viii), and (xvi) of Section 5.1.(a) if such Subsidiary had been
a Material Subsidiary on the Agreement
Date; provided, however, promptly (and in any event within 30
days) upon any Excluded Subsidiary ceasing to be subject to the restriction
which prevented it from becoming a Guarantor on the Effective Date or
delivering an Accession Agreement pursuant to this Section, as the case may be,
such Subsidiary shall comply with the provisions of this Section.


 


(b)                                 The Borrower
may request in writing that the Administrative Agent release, and upon receipt
of such request the Administrative Agent shall release, a Guarantor from the
Guaranty so long as: (i) such Guarantor is not otherwise required to be a
party to the Guaranty under the immediately preceding subsection (a);
(ii) no Default or Event of Default shall then be in existence or would
occur as a result of such release, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained
in Section 9.1.; (iii) the representations and warranties made or
deemed made by the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party, shall be true and correct on and as of the date
of such release with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances expressly permitted under the
Loan Documents; and (iv) the Administrative Agent shall have received such
written request at least 10 Business Days (or such shorter period as may be
acceptable to the Administrative Agent) prior to the requested date of
release.  Delivery by the Borrower to the
Administrative Agent of any such request shall constitute a representation by
the Borrower that the matters set forth in the preceding sentence (both as of
the date of the giving of such request and as of the date of the effectiveness
of such request) are true and correct with respect to such request.


 


ARTICLE VIII. INFORMATION


 


For
so long as this Agreement is in effect, the Borrower shall furnish to the
Administrative Agent for distribution to each of the Lenders:


 


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Section 8.1.  Quarterly Financial Statements.


 


As
soon as available and in any event within 5 days after the same is filed with the Securities and Exchange
Commission (but in no event later than 45
days after the close of each of the first, second and third fiscal quarters of
the Borrower), the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such period and the related unaudited
consolidated statements of income, shareholders’
equity and cash flows of the Borrower and its Subsidiaries for such
period, setting forth in each case in comparative form the figures as of the
end of and for the corresponding periods of the previous fiscal year, all of
which shall be certified by the chief financial officer or chief accounting
officer of the Borrower, in his or her opinion, to present fairly, in
accordance with GAAP and in all material respects, the consolidated financial
position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end audit
adjustments).  Together with such
financial statements, the Borrower shall deliver reports, in form and detail satisfactory
to the Administrative Agent, setting forth: (a) a statement of Funds From
Operations for the fiscal quarter then ending; (b) a listing of capital
expenditures made during the fiscal quarter then ended; (c) a listing of
all Properties acquired during such fiscal quarter, including the net operating
income of each such Property, acquisition costs and related mortgage debt, if
any; and (d) an updated listing of all Material Contracts on
Schedule 6.1.(h), if any.


 


Section 8.2.  Year-End Statements.


 


As
soon as available and in any event within 5 days after the same is filed with the Securities and Exchange
Commission (but in no event later than 90
days after the end of each fiscal year of the Borrower), the audited
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year and the related audited consolidated statements of income,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries for
such fiscal year, setting forth in comparative form the figures as at the end
of and for the previous fiscal year, all of which shall be (a) certified
by the chief financial officer or chief accounting officer of the Borrower, in
his or her opinion, to present fairly, in accordance with GAAP and in all
material respects, the financial position of the Borrower and its Subsidiaries
as at the date thereof and the result of operations for such period and
(b) accompanied by the report thereon of Ernst &Young LLP or any
other independent certified public accountants of recognized national standing,
whose certificate shall be unqualified and who shall have authorized the
Borrower to deliver such financial statements and certification thereof to the
Administrative Agent and the Lenders pursuant to this Agreement.  Together with such financial statements, the
Borrower shall deliver a report, certified by the chief financial officer or
chief accounting officer of Borrower, in form and detail reasonably
satisfactory to the Administrative Agent, setting forth the Net Operating
Income for each Property for such fiscal year.


 


Section 8.3.  Compliance Certificate.


 


At
the time the financial statements are furnished pursuant to the immediately
preceding Sections 8.1. and 8.2., and within 5 Business Days of the
Administrative Agent’s request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit K (a “Compliance
Certificate”) executed on behalf of the Borrower by the chief financial officer
or chief accounting officer of the Borrower (a) setting forth in
reasonable detail as of the end of such quarterly accounting period or fiscal
year, as the case may be, the calculations required to establish whether the
Borrower was in compliance with the covenants contained in Section 9.1.;
and (b) stating that, to the best of his or her knowledge, information and
belief after due inquiry, no Default or Event of Default exists, or, if such is
not the case, specifying such Default or Event of Default and its nature, when
it occurred and the steps being taken by the Borrower with respect to such event,
condition or failure.


 


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Section 8.4.  Other Information.


 


(a)                                 Promptly upon
receipt thereof, copies of all material reports, if any, submitted to the
Borrower or its Board of Trustees by its independent public accountants, any in
any event all management reports;


 


(b)                                 Within five
(5) Business Days of the filing thereof, copies of all registration
statements (excluding the exhibits thereto (unless requested by the
Administrative Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which any Loan Party or any other Subsidiary shall file
with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor) or any national securities exchange;


 


(c)                                  Promptly upon
the mailing thereof to the shareholders of the Borrower generally, copies of
all financial statements, reports and proxy statements so mailed and promptly
upon the issuance thereof copies of all press releases issued by the Borrower,
any Subsidiary or any other Loan Party;


 


(d)                                 If any ERISA
Event shall occur that individually, or together with any other ERISA Event
that has occurred, could reasonably be expected to have a Material Adverse
Effect, a certificate of the chief executive officer or chief financial officer
of the Borrower setting forth details as to such occurrence and the action, if
any, which the Borrower or applicable member of the ERISA Group is required or
proposes to take;


 


(e)                                  To the extent
any Loan Party or any other Subsidiary is aware of the same, prompt notice of
the commencement of any proceeding or investigation by or before any
Governmental Authority and any action or proceeding in any court or other
tribunal or before any arbitrator against or in any other way relating
adversely to, or adversely affecting, any Loan Party or any other Subsidiary or
any of their respective properties, assets or businesses which could reasonably
be expected to have a Material Adverse Effect, and prompt notice of the receipt
of notice that any United States income tax returns of any Loan Party or any
other Subsidiary are being audited;


 


(f)                                   A copy of any
amendment to the certificate or articles of incorporation or formation, bylaws,
partnership agreement or other similar organizational documents of the Borrower
or any other Loan Party promptly upon the Administrative Agent’s request;


 


(g)                                  Prompt notice
of any change in the senior management of the Borrower, any Subsidiary or any
other Loan Party and any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of any Loan Party or any
other Subsidiary which has had, or could reasonably be expected to have, a
Material Adverse Effect;


 


(h)                                 Prompt notice
of the occurrence of any of the following promptly upon a Responsible Officer
obtaining knowledge thereof: (i) Default or Event of Default or (ii) any
event which constitutes or which with the passage of time, the giving of notice,
or otherwise, would constitute a default or event of default by any Loan Party
or any other Subsidiary under any Material Contract to which any such Person is
a party or by which any such Person or any of its respective properties may be
bound;


 


(i)                                     Prompt notice
of any order, judgment or decree in excess of $5,000,000 having been entered
against any Loan Party or any other Subsidiary or any of their respective
properties or assets;


 


64

















 


(j)                                    Prompt notice
if the Borrower, any Subsidiary or any other Loan Party shall receive any
notification from any Governmental Authority alleging a violation of any
Applicable Law or any inquiry which could reasonably be expected to have a
Material Adverse Effect;


 


(k)                                 Prompt notice
of the acquisition, incorporation or other creation of any Material Subsidiary,
the purpose for such Subsidiary, the nature of the assets and liabilities
thereof and whether such Subsidiary is a Wholly Owned Subsidiary of the
Borrower;


 


(l)                                     Promptly upon
the request of the Administrative Agent, evidence of the Borrower’s calculation
of the Ownership Share with respect to a Subsidiary or an Unconsolidated
Affiliate, such evidence to be in form and detail satisfactory to the
Administrative Agent;


 


(m)                             Promptly, upon
Borrower becoming aware of any change in the Borrower’s Credit Rating, a
certificate stating that the Borrower’s Credit Rating has changed and the new
Credit Rating that is in effect;


 


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


 


(o)                                 Promptly, and
in any event within 3 Business Days after the Borrower obtains knowledge
thereof, written notice of the occurrence of any of the following:  (i) the Borrower, any Loan Party or any
other Subsidiary shall receive notice that any violation of or noncompliance
with any Environmental Law has or may have been committed or is threatened;
(ii) the Borrower, any Loan Party or any other Subsidiary shall receive
notice that any administrative or judicial complaint, order or petition has
been filed or other proceeding has been initiated, or is about to be filed or
initiated against any such Person alleging any violation of or noncompliance
with any Environmental Law or requiring any such Person to take any action in
connection with the release or threatened release of Hazardous Materials;
(iii) the Borrower, any Loan Party or any other Subsidiary shall receive
any notice from a Governmental Authority or private party alleging that any
such Person may be liable or responsible for any costs associated with a
response to, or remediation or cleanup of, a release or threatened release of
Hazardous Materials or any damages caused thereby; or (iv) the Borrower,
any Loan Party or any other Subsidiary shall receive notice of any other fact,
circumstance or condition that could reasonably be expected to form the basis
of an environmental claim, in each case, where the matters covered by such
notice(s) under clauses (i) through (iv), whether individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect;
and


 


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


 


Section 8.5.  Electronic Delivery of Certain Information.


 


(a)                                 Documents
required to be delivered pursuant to the Loan Documents shall be delivered by
electronic communication and delivery, including, the Internet, e-mail or
intranet websites to which the Administrative Agent and each Lender have access
(including a commercial, third-party website such as www.Edgar.com
<http://www.Edgar.com> or a website sponsored or hosted by the
Administrative Agent or the Borrower) provided that the foregoing shall not
apply to (i) notices to any Lender (or the Issuing Bank) pursuant to Article II.
and (ii) any Lender that has notified the Administrative Agent and


 


65

















 


the
Borrower that it cannot or does not want to receive electronic
communications.  The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic delivery pursuant to procedures
approved by it for all or particular notices or communications.  Documents or notices delivered electronically
shall be deemed to have been delivered twenty-four (24) hours after the date
and time on which the Administrative Agent or the Borrower posts such documents
or the documents become available on a commercial website and the
Administrative Agent or Borrower notifies each Lender of said posting and
provides a link thereto provided (x) if such notice or other communication
is not sent or posted during the normal business hours of the recipient, said
posting date and time shall be deemed to have commenced as of 10:00 a.m.
Eastern time on the next business day for the recipient and (y) if the
deemed time of delivery occurs on a day that is not a business day for the
recipient, the deemed time of delivery shall be 10:00 a.m. Eastern time on
the next business day for the recipient. 
Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the certificate required
by Section 8.3. to the Administrative Agent and shall deliver paper copies
of any documents to the Administrative Agent or to any Lender that requests
such paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent or such Lender.  Except for the certificates required by Section 8.3.,
the Administrative Agent shall have no obligation to request the delivery of or
to maintain paper copies of the documents delivered electronically, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery.  Each
Lender shall be solely responsible for requesting delivery to it of paper
copies and maintaining its paper or electronic documents.


 


(b)                                 Documents
required to be delivered pursuant to Article II. may be delivered
electronically to a website provided for such purpose by the Administrative
Agent pursuant to the procedures provided to the Borrower by the Administrative
Agent.


 


Section 8.6.  Public/Private Information.


 


The
Borrower shall cooperate with the Administrative Agent in connection with the
publication of certain materials and/or information provided by or on behalf of
the Borrower.  Documents required to be delivered
pursuant to the Loan Documents shall be delivered by or on behalf of the
Borrower to the Administrative Agent and the Lenders (collectively, “Information
Materials”) pursuant to this Article and the Borrower shall designate
Information Materials (a) that are either available to the public or not
material with respect to the Borrower and its Subsidiaries or any of their
respective securities for purposes of United States federal and state
securities laws, as “Public Information” and (b) that are not Public
Information as “Private Information”.


 


Section 8.7.  USA Patriot Act Notice; Compliance.


 


The
USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with
respect thereto require all financial institutions to obtain, verify and record
certain information that identifies individuals or business entities which open
an “account” with such financial institution. 
Consequently, a Lender (for itself and/or as Administrative Agent for
all Lenders hereunder) may from time-to-time request, and the Borrower shall,
and shall cause the other Loan Parties to, provide to such Lender, such Loan
Party’s name, address, tax identification number and/or such other
identification information as shall be necessary for such Lender to comply with
federal law.  An “account” for this
purpose may include, without limitation, a deposit account, cash management
service, a transaction or asset account, a credit account, a loan or other
extension of credit, and/or other financial services product.


 


66

















 


ARTICLE IX. NEGATIVE
COVENANTS


 


For
so long as this Agreement is in effect, the Borrower shall comply with the
following covenants:


 


Section 9.1.  Financial Covenants.


 


(a)                                 Leverage Ratio.  The Borrower shall not permit the ratio of
(i) Total Indebtedness to (ii) Total Asset Value to exceed 0.60 to
1.00 at any time.


 


(b)                                 Minimum Fixed
Charge Coverage Ratio.  The
Borrower shall not permit the ratio of (i) Adjusted EBITDA for the fiscal
quarter of the Borrower most recently ending to (ii) Fixed Charges for
such period, to be less than 1.50 to 1.00 at any time.


 


(c)                                  Secured
Indebtedness.  The
Borrower shall not permit the ratio of (i) Secured Indebtedness of the
Borrower and its Subsidiaries to (ii) Total Asset Value to be greater than
0.350 to 1.00 at any time.


 


(d)                                 Unencumbered
Leverage Ratio.  The
Borrower shall not permit the ratio of (i) Unencumbered Asset Value to
(ii) Unsecured Indebtedness, to be less than 1.670 to 1.00 at any time.


 


(e)                                  Unencumbered
Interest Coverage Ratio.  The
Borrower shall not permit the ratio of (i) Unencumbered Net Operating
Income to (ii) Unsecured Debt Service for the Borrower’s fiscal quarter
most recently ending, to be less than 2.0 to 1.0 at any time.


 


(f)                                   Minimum
Tangible Net Worth.  The
Borrower shall not permit Tangible Net Worth at any time to be less than
(i) $582,332,000 plus (ii) 75% of the Net Proceeds of all Equity
Issuances effected by the Borrower or any Subsidiary (other than Equity
Issuances to the Borrower or any Subsidiary) after June 30, 2010.


 


(g)                                  Total Assets Owned by Borrower and Guarantors.  The Borrower shall not
permit the amount of Total Asset Value
directly owned by the Borrower and the Guarantors to be less than 95.0% of
Total Asset Value (excluding the amount of Total Asset Value, if any, then
attributable to Excluded Subsidiaries).


 


(h)                                 Permitted
Investments. The Borrower shall not, and shall not permit any
Loan Party or other Subsidiary to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of such
Persons to exceed the following percentages of Total Asset Value at any time:


 


(i)                                     Investments in
Unconsolidated Affiliates and other Persons that are not Subsidiaries, such
that the aggregate value of such Investments (determined in a manner consistent
with the definition of Total Asset Value or, if not contemplated under the
definition of Total Asset Value, as determined in accordance with GAAP) exceeds
10.0% of Total Asset Value at any time;


 


(ii)                                  Assets Under
Development, such that the aggregate Construction Budget for all such Assets
Under Development exceeds 15.0% of Total Asset Value at any time; for purposes
of this clause: (x) “Construction Budget” means the fully-budgeted costs
for the acquisition and construction of a given piece of real property
(including without limitation, the cost of acquiring such piece of real
property (except to the extent any portion thereof is Unimproved Land included


 


67

















 


in
the immediately following clause (v)), reserves for construction interest
and operating deficits, tenant improvements, leasing commissions, and
infrastructure costs), as reasonably determined by the Borrower in good faith
and (y) real property under construction to be (but not yet) acquired by
the Borrower or a Subsidiary upon completion of construction pursuant to a
contract in which the seller of such real property is required to complete
construction prior to, and as a condition precedent to, such acquisition, shall
be subject to this subsection;


 


(iii)                               Assets Under
Development, such that the Construction Budget for all Assets Under Development
that are less than 75.0% pre-leased to an Eligible Tenant (based on net
rentable square footage) would exceed 5.0% of Total Asset Value;


 


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


 


(v)                                 Unimproved Land
such that the aggregate book value of all such Unimproved Land exceeds 5.0% of
Total Asset Value at any time.


 


In
addition to the foregoing limitations in this Section 9.1.(h), the
aggregate (without duplication) of (x) the aggregate Construction Budget
for all Assets Under Development, (y) the aggregate book value of all
Mortgage Receivables and (z) the aggregate book value of all Unimproved
Land shall not exceed 25.0% of Total Asset Value at any time.


 


(i)                                     Dividends and
Other Restricted Payments.  
Subject to the following sentence, if an Event of Default exists, the
Borrower shall not, and shall not permit any of its Subsidiaries to, declare or
make any Restricted Payments except that the Borrower may declare and make cash
distributions to its shareholders in an aggregate amount not to exceed the
minimum amount necessary for the Borrower to remain in compliance with
Section 7.11. and
Subsidiaries may pay Restricted Payments to the Borrower or any other
Subsidiary.  If an Event of Default
specified in Section 10.1.(a),
Section 10.1.(e) or
Section 10.1.(f) shall
exist, or if as a result of the occurrence of any other Event of Default any of
the Obligations have been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and
shall not permit any Subsidiary to, make any Restricted Payments to any Person
except that Subsidiaries may pay Restricted Payments to the Borrower or any
other Subsidiary.


 


Section 9.2.  Negative Pledge.


 


(a)                                 The Borrower
shall not, and shall not permit any other Loan Party or any other Subsidiary
to, create, assume, or incur any Lien (other than Permitted Liens) upon any of
its properties, assets, income or profits of any character whether now owned or
hereafter acquired if immediately prior to the creation, assumption or
incurring of such Lien, or immediately thereafter, a Default or Event of Default
is or would be in existence, including without limitation, a Default or Event
of Default resulting from a violation of any of the covenants contained in
Section 9.1.


 


(b)                                 The Borrower
shall not, and shall not permit any other Loan Party or any other Subsidiary
(other than an Excluded Subsidiary) to, enter into, assume or otherwise be
bound by any Negative Pledge except for a Negative Pledge contained in
(i) an agreement (x) evidencing Indebtedness which (A) the
Borrower, such Loan Party or such Subsidiary may create, incur, assume, or
permit or suffer to exist without violation of this Agreement and (B)  is
secured by a Lien permitted to exist under the Loan Documents, and
(y) which prohibits the creation of any other Lien on only the property
securing such Indebtedness as of the date such agreement was entered into; or
(ii) an agreement relating to the sale of a Subsidiary or assets pending
such sale, provided that in any such case the Negative Pledge applies only to
the Subsidiary or the assets that are the subject of such sale.


 


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Section 9.3.  Restrictions on Intercompany Transfers.


 


The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary  (other than an Excluded Subsidiary)
to, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary (other than an Excluded Subsidiary) to: (a) pay dividends or
make any other distribution on any of such Subsidiary’s capital stock or other
equity interests owned by the Borrower or any Subsidiary; (b) pay any
Indebtedness owed to the Borrower or any Subsidiary; (c) make loans or
advances to the Borrower or any Subsidiary; or (d) transfer any of its
property or assets to the Borrower or any Subsidiary; other than (i) with
respect to clauses (a) through (d) those encumbrances or restrictions
contained in  any Loan Document or, (ii) with
respect to clause (d), customary provisions restricting assignment of any
agreement entered into by the Borrower, any other Loan Party or any Subsidiary
in the ordinary course of business. 
Notwithstanding anything to the contrary in the foregoing, the
restrictions in this Section shall not apply to any provision of any
Guaranty entered into by the Borrower, any Loan Party or any other Subsidiary
relating to the Indebtedness of any Subsidiary permitted to be incurred
hereunder, which provision subordinates any rights of Borrower, other Loan
Party or any other Subsidiary to payment from such Subsidiary to the payment in
full of such Indebtedness.


 


Section 9.4.  Merger, Consolidation, Sales of Assets and
Other Arrangements.


 


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


 


(a)                                 any of the
actions described in the immediately preceding clauses (i) through (iii) may
be taken with respect to any Subsidiary or any other Loan Party (other than the
Borrower) so long as immediately prior to the taking of such action, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence;


 


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


 


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


 


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


 


Section 9.5.  Plans.


 


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


 


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to
cause or permit to occur, any ERISA Event if such ERISA Event could reasonably
be expected to have a Material Adverse Effect.


 


Section 9.6.  Fiscal Year.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.


 


Section 9.7.  Modifications of Organizational Documents and
Material Contracts.


 


(a)                                 The Borrower
shall not, and shall not permit any other Loan Party or any other Subsidiary
to, amend, supplement, restate or otherwise modify its certificate or articles
of incorporation or formation, by-laws, operating agreement, declaration of
trust, partnership agreement or other applicable organizational document if
such amendment, supplement, restatement or other modification (a) could
reasonably be expected to be adverse to the interest of the Lenders in any
material respect or (b) could reasonably be expected to have a Material
Adverse Effect.


 


(b)                                 The Borrower
shall not default in any material respect in the performance of any of its
obligations under the Business Management Agreement or the Property Management
Agreement or permit the Business Management Agreement or the Property
Management Agreement to be canceled or terminated prior to its stated maturity.
The Borrower shall not enter into any material amendment, modification or
waiver of or with respect to any of the terms of the Business Management
Agreement or the Property Management Agreement, except for extensions
thereof.  With respect to Material
Contracts other than the Business Management Agreement and the Property
Management Agreement, the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, enter into any amendment or modification to
any such Material Contract which could reasonably be expected to have a
Material Adverse Effect.


 


Section 9.8.  Transactions with Affiliates.


 


The
Borrower shall not permit to exist or enter into, and shall not permit any
other Loan Party or any other Subsidiary to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate, except (a) as set forth
on Schedule 6.1.(s) or (b) transactions in the ordinary course
of and pursuant to the reasonable requirements of the business of the Borrower,
such other Loan Party or such other Subsidiary and upon fair and reasonable
terms which are no less favorable to the Borrower, such other Loan Party or
such other Subsidiary than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate.


 


Section 9.9.  Environmental Matters.


 


The
Borrower shall not, and shall not permit any other Loan Party, any other Subsidiary
or any other Person to, use, generate, discharge, emit, manufacture, handle,
process, store, release, transport, remove, dispose of or clean up any
Hazardous Materials on, under or from the Properties in violation of any
Environmental Law or in a manner that could lead to any environmental claim or
pose a risk to human health, safety or the environment, in each case, that
could reasonably be expected to have a Material Adverse Effect.  Nothing in this Section shall impose any
obligation or liability whatsoever on the Administrative Agent or any Lender.


 


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Section 9.10.  Derivatives Contracts.


 


The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to enter into or become obligated in respect of, Derivatives
Contracts, other than Derivatives Contracts entered into by the Borrower, any
such Loan Party or any such Subsidiary in the ordinary course of business and
which establish an effective hedge in respect of liabilities, commitments or
assets held or reasonably anticipated by the Borrower, such other Loan Party or
such other Subsidiary.


 


ARTICLE X. DEFAULT


 


Section 10.1.  Events of Default.


 


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


 


(a)                                 Default in
Payment.  The Borrower (i) shall
fail to pay when due under this Agreement or any other Loan Document (whether
upon demand, at maturity, by reason of acceleration or otherwise) the principal
of any of the Loans or any Reimbursement Obligation or (ii) shall fail to
pay when due any interest on any of the Loans or any of the other payment
Obligations owing by the Borrower under this Agreement, any other Loan Document
or the Fee Letter or any other Loan Party shall fail to pay when due any
payment Obligation owing by such other Loan Party under any Loan Document to
which it is a party, and, in the case of a failure described in this clause
(ii), such failure shall continue for a period of 5 Business Days.


 


(b)                                 Default in
Performance.


 


(i)                                     Any Loan Party
shall fail to perform or observe any term, covenant, condition or agreement on
its part to be performed or observed and contained in Section 8.4.(h) or
Article IX.; or


 


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


 


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


 


(d)                                 Indebtedness
Cross-Default.


 


(i)                                     The Borrower,
any other Loan Party or any other Subsidiary shall fail to pay when due and
payable the principal of, or interest on, any Indebtedness (other than the
Loans and Reimbursement Obligations) having an aggregate outstanding principal
amount (or, in the case of


 


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any
Derivatives Contract, having a Derivatives Termination Value) of $25,000,000 or
more (or $50,000,000 or more in the case of Nonrecourse Indebtedness of
Excluded Subsidiaries) (“Material Indebtedness”); or


 


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


 


(iii)                               Any other event
shall have occurred and be continuing which, with or without the passage of
time, the giving of notice, or otherwise, would permit any holder or holders of
any Material Indebtedness, any trustee or agent acting on behalf of such holder
or holders or any other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid or
repurchased prior to its stated maturity.


 


(e)                                  Voluntary Bankruptcy
Proceeding.  The
Borrower, any other Loan Party or any Subsidiary (other than (x) an
Excluded Subsidiary all Indebtedness of which is Nonrecourse Indebtedness,
(y) a Guarantor that, together with all other Guarantors then subject to a
bankruptcy proceeding or other proceeding or condition described in this
subsection or the immediately following subsection, does not account for more
than $25,000,000 of Total Asset Value, or (z) a Subsidiary (other than an
Excluded Subsidiary all the Indebtedness of which is Nonrecourse Indebtedness)
that, together with all other Subsidiaries then subject to a bankruptcy
proceeding or other proceeding or condition described in this subsection or the
immediately following subsection, does not account for more than $50,000,000 of
Total Asset Value) shall: 
(i) commence a voluntary case under the Bankruptcy Code, or other
federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest
in a timely and appropriate manner, any petition filed against it in an
involuntary case under such bankruptcy laws or other Applicable Laws or consent
to any proceeding or action described in the immediately following subsection;
(iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability
to pay its debts as they become due; (vi) make a general assignment for
the benefit of creditors; (vii) make a conveyance fraudulent as to
creditors under any Applicable Law; or (viii) take any corporate or
partnership action for the purpose of effecting any of the foregoing.


 


(f)                                   Involuntary
Bankruptcy Proceeding.  A
case or other proceeding shall be commenced against the Borrower, any other
Loan Party or any Subsidiary (other than (x) an Excluded Subsidiary all
Indebtedness of which is Nonrecourse Indebtedness, (y) a Guarantor that,
together with all other Guarantors then subject to a bankruptcy proceeding or
other proceeding or condition described in this subsection or the immediately
preceding subsection, does not account for more than $25,000,000 of Total Asset
Value, or (z) a Subsidiary (other than an Excluded Subsidiary all the
Indebtedness of which is Nonrecourse Indebtedness) that, together with all
other Subsidiaries then subject to a bankruptcy proceeding or other proceeding
or condition described in this subsection or the immediately preceding
subsection, does not account for more than $50,000,000 of Total Asset Value) or
any other Loan Party, in any court of competent jurisdiction seeking:  (i) relief under the Bankruptcy Code, or
other federal bankruptcy laws (as now or hereafter in effect) or under any
other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of such Person, or of all or any substantial part of the assets, domestic
or foreign, of such Person, and such case or proceeding shall


 


72

















 


continue
undismissed or unstayed for a period of 60 consecutive calendar days, or
an order granting the remedy or other relief requested in such case or
proceeding against the Borrower, such Subsidiary or such other Loan Party
(including, but not limited to, an order for relief under such Bankruptcy Code
or such other federal bankruptcy laws) shall be entered.


 


(g)                                  Revocation of
Loan Documents.  Any Loan
Party shall (or shall attempt to) disavow, revoke or terminate any Loan
Document or the Fee Letter to which it is a party or shall otherwise challenge
or contest in any action, suit or proceeding in any court or before any
Governmental Authority the validity or enforceability of any Loan Document or
the Fee Letter or any Loan Document or the Fee Letter shall cease to be in full
force and effect (except as a result of the express terms thereof).


 


(h)                                 Judgment.   A judgment or order for the payment of money
or for an injunction or other non-monetary relief shall be entered against the
Borrower, any other Loan Party, or any other Subsidiary by any court or other
tribunal and (i) such judgment or order shall continue for a period of
thirty (30) days without being paid, stayed or dismissed through appropriate
appellate proceedings and (ii) either (A) the amount of such judgment
or order (x) for which insurance has not been acknowledged in writing by
the applicable insurance carrier (or the amount as to which the insurer has
denied liability) or (y) is not otherwise subject to indemnification or
reimbursement on reasonable terms and conditions by Persons reasonably likely
to honor such indemnification or reimbursement obligations, exceeds, individually
or together with all other such judgments or orders entered against (1) in
the case of the Borrower or any Guarantor, $25,000,000, or (2) in the case
of any other Subsidiaries, $50,000,000 or (B) in the case of an injunction
or other non-monetary relief, such injunction or judgment or order could
reasonably be expected to have a Material Adverse Effect.


 


(i)                                     Attachment.  A warrant, writ of attachment, execution or
similar process shall be issued against any property of the Borrower, any other
Loan Party or any other Subsidiary, which exceeds, individually or together
with all other such warrants, writs, executions and processes, (1) for the
Borrower or any Guarantor, $25,000,000, or (2) for any other Subsidiaries,
$50,000,000, and such warrant, writ, execution or process shall not be paid,
discharged, vacated, stayed or bonded for a period of thirty (30) days;
provided, however, that if a bond has been issued in favor of the claimant or
other Person obtaining such warrant, writ, execution or process, the issuer of
such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Administrative Agent pursuant to which the issuer
of such bond subordinates its right of reimbursement, contribution or
subrogation to the Obligations and waives or subordinates any Lien it may have
on the assets of the Borrower or any Subsidiary.


 


(j)                                    ERISA.


 


(i)                                     Any ERISA Event
shall have occurred that results or could reasonably be expected to result in
liability to any member of the ERISA Group aggregating in excess of
$10,000,000; or


 


(ii)                                  The “benefit
obligation” of all Plans exceeds the “fair market value of plan assets” for
such Plans by more than $10,000,000, all as determined, and with such terms
defined, in accordance with FASB ASC 715.


 


(k)                                 Loan Documents.  An Event of Default (as defined therein)
shall occur under any of the other Loan Documents.


 


73

















 


(l)                                     Change of
Control.


 


(i)                                     Any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than
CommonWealth REIT, is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 15.0 % of the total voting power of the
then outstanding voting stock of the Borrower;


 


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


 


(iii)                               RMR shall cease for any
reason to act as the sole business manager and property manager for the
Borrower.


 


Section 10.2.  Remedies Upon Event of Default.


 


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


 


(a)                                 Acceleration;
Termination of Facilities.


 


(i)                                     Automatic.  Upon the occurrence of an Event of Default specified
in Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of, and
all accrued interest on, the Loans and the Notes at the time outstanding,
(B) an amount equal to the Stated Amount of all Letters of Credit
outstanding as of the date of the occurrence of such Event of Default for
deposit into the Letter of Credit Collateral Account and (C) all of the
other Obligations, including, but not limited to, the other amounts owed to the
Lenders and the Administrative Agent under this Agreement, the Notes or any of
the other Loan Documents shall become immediately and automatically due and
payable without presentment, demand, protest, or other notice of any kind, all
of which are expressly waived by the Borrower on behalf of itself and the other
Loan Parties, and (2) the Commitments and the Swingline Commitment and the
obligation of the Issuing Bank to issue Letters of Credit hereunder, shall all
immediately and automatically terminate.


 


(ii)                                  Optional.  If any other Event of Default shall exist,
the Administrative Agent may, and at the direction of the Requisite Lenders
shall:  (1) declare (A) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (B) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such Event of Default
for deposit into the Letter of Credit Collateral Account and (C) all of
the other Obligations, including, but not limited to, the other amounts owed to
the Lenders and the Administrative Agent under this Agreement, the Notes or any
of the other Loan Documents to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand, protest
or other notice of any kind, all of which are expressly waived by the Borrower
on behalf of itself and the other Loan Parties, and (2) terminate the
Commitments and the Swingline Commitment and the obligation of the Issuing Bank
to issue Letters of Credit hereunder.


 


74

















 


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


 


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


 


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


 


(e)                                  Specified
Derivatives Contract Remedies.  Notwithstanding any other provision of this
Agreement or other Loan Document, each Specified Derivatives Provider shall
have the right, with prompt notice to the Administrative Agent, but without the
approval or consent of or other action by the Administrative Agent or the
Lenders, and without limitation of other remedies available to such Specified
Derivatives Provider under contract or Applicable Law, in each case, in
accordance with the terms of the applicable Specified Derivatives Contract, to
undertake any of the following:  (a) to
declare an event of default, termination event or other similar event under any
Specified Derivatives Contract and to create an “Early Termination Date” (as
defined therein) in respect thereof, (b) to determine net termination
amounts in respect of any and all Specified Derivatives Contracts in accordance
with the terms thereof, and to set off amounts among such contracts, (c) to
set off or proceed against deposit account balances, securities account
balances and other property and amounts held by such Specified Derivatives
Provider pursuant to any Derivatives Support Document, including any “Posted
Collateral” (as defined in any credit support annex included in any such
Derivatives Support Document to which such Specified Derivatives Provider may
be a party), and (d) to prosecute any legal action against the Borrower,
any Loan Party or other Subsidiary to enforce or collect net amounts owing to
such Specified Derivatives Provider pursuant to any Specified Derivatives
Contract.


 


Section 10.3.  Remedies Upon Default.


 


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


 


Section 10.4.  Marshaling; Payments Set Aside.


 


None
of the Administrative Agent, the Issuing Bank, any Lender or any Specified
Derivatives Provider shall be under any obligation to marshal any assets in
favor of any Loan Party or any other party or against or in payment of any or
all of the Obligations or the Specified Derivatives Obligations.  To the extent that any Loan Party makes a
payment or payments to the Administrative Agent, the Issuing Bank, any Lender
or any Specified Derivatives Provider, or the Administrative Agent, the Issuing
Bank, any Lender or any Specified Derivatives Provider enforce their security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to
the extent of such recovery, the Obligations or Specified Derivatives
Obligations, or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor,


 


75

















 


shall
be revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.


 


Section 10.5.  Allocation of Proceeds.


 


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


 


(a)                                 amounts due to
the Administrative Agent, the Issuing Bank and the Lenders in respect of
expenses due under Section 12.2. until paid in full, and then Fees;


 


(b)                                 payments of
interest on Swingline Loans;


 


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


 


(d)                                 payments of
principal of Swingline Loans;


 


(e)                                  payments of
principal of all other Loans, Reimbursement Obligations and other Letter of
Credit Liabilities, to be applied for the ratable benefit of the Lenders in
such order and priority as the Lenders may determine in their sole discretion;
provided, however, to the extent that any amounts available for distribution
pursuant to this subsection are attributable to the issued but undrawn amount
of an outstanding Letter of Credit, such amounts shall be paid to the
Administrative Agent for deposit into the Letter of Credit Collateral Account;


 


(f)                                   amounts due to
the Administrative Agent and the Lenders pursuant to Sections 11.6. and
12.10.;


 


(g)                                  payments of all
other amounts due under any of the Loan Documents, if any, to be applied for
the ratable benefit of the Lenders; and


 


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


 


Section 10.6.  Letter of Credit Collateral Account.


 


(a)                                 As collateral
security for the prompt payment in full when due of all Letter of Credit
Liabilities and the other Obligations, the Borrower hereby pledges and grants
to the Administrative Agent, for the ratable benefit of the Administrative
Agent, the Issuing Bank and the Lenders as provided herein, a security interest
in all of its right, title and interest in and to the Letter of Credit
Collateral Account and the balances from time to time in the Letter of Credit
Collateral Account (including the investments and reinvestments therein
provided for below).  The balances from
time to time in the Letter of Credit Collateral Account shall not constitute
payment of any Letter of Credit Liabilities until applied by the Issuing Bank
as provided herein.  Anything in this
Agreement to the contrary notwithstanding, funds held in the Letter of Credit
Collateral Account shall be subject to withdrawal only as provided in this
Section.


 


(b)                                 Amounts on
deposit in the Letter of Credit Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the
Administrative Agent shall


 


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determine
in its sole discretion.  All such
investments and reinvestments shall be held in the name of and be under the
sole dominion and control of the Administrative Agent for the ratable benefit
of the Administrative Agent, the Issuing Bank and the Lenders; provided,
that all earnings on such investments will be credited to and retained in the
Letter of Credit Collateral Account.  The
Administrative Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords other funds deposited with the Administrative Agent, it being
understood that the Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect
to any funds held in the Letter of Credit Collateral Account.


 


(c)                                  If a drawing
pursuant to any Letter of Credit occurs on or prior to the expiration date of
such Letter of Credit, the Borrower and the Lenders authorize the
Administrative Agent to use the monies deposited in the Letter of Credit
Collateral Account to reimburse the Issuing Bank for the payment made by the
Issuing Bank to the beneficiary with respect to such drawing or the payee with
respect to such presentment.


 


(d)                                 If an Event of
Default exists, the Administrative Agent may (and, if instructed by the
Requisite Lenders, shall) in its (or their) discretion at any time and from
time to time elect to liquidate any such investments and reinvestments and
apply the proceeds thereof to the Obligations in accordance with
Section 10.5.


 


(e)                                  So long as no
Default or Event of Default exists, and to the extent amounts on deposit in or
credited to the Letter of Credit Collateral Account exceed the aggregate amount
of the Letter of Credit Liabilities then due and owing, the Administrative
Agent shall, from time to time, at the request of the Borrower, deliver to the
Borrower within 5 Business Days after the Administrative Agent’s receipt of
such request from the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, such of amount of the credit balances in
the Letter of Credit Collateral Account as exceeds the aggregate amount of
Letter of Credit Liabilities at such time. 
When all of the Obligations shall have been indefeasibly paid in full
and no Letters of Credit remain outstanding, the Administrative Agent shall
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the Letter of Credit
Collateral Account.


 


(f)                                   The Borrower
shall pay to the Administrative Agent from time to time such fees as the
Administrative Agent normally charges for similar services in connection with
the Administrative Agent’s administration of the Letter of Credit Collateral
Account and investments and reinvestments of funds therein.


 


Section 10.7.  Performance by Administrative Agent.


 


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


 


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Section 10.8.  Rights Cumulative.


 


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


 


ARTICLE XI. THE
ADMINISTRATIVE AGENT


 


Section 11.1.  Appointment and Authorization.


 


Each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as contractual representative on such Lender’s behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. Not in
limitation of the foregoing, each Lender authorizes and directs the
Administrative Agent to enter into the Loan Documents for the benefit of the
Lenders.  Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders
in accordance with the provisions of this Agreement or the Loan Documents, and
the exercise by the Requisite Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders.  Nothing herein shall be construed to deem the
Administrative Agent a trustee or fiduciary for any Lender or to impose on the
Administrative Agent duties or obligations other than those expressly provided
for herein.  Without limiting the
generality of the foregoing, the use of the terms “Agent”, “Administrative
Agent”, “agent” and similar terms in the Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any Applicable
Law.  Instead, use of such terms is
merely a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.  The Administrative Agent shall deliver to
each Lender, promptly upon receipt thereof by the Administrative Agent, copies
of each of the financial statements, certificates, notices and other documents
delivered to the Administrative Agent pursuant to Article VIII. that the
Borrower is not otherwise required to deliver directly to the Lenders.  The Administrative Agent will furnish to any
Lender, upon the request of such Lender, a copy (or, where appropriate, an
original) of any document, instrument, agreement, certificate or notice furnished
to the Administrative Agent by the Borrower, any other Loan Party or any other
Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. 
As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders (or all of the Lenders if
explicitly required under any other provision of this Agreement), and such
instructions shall be binding upon all Lenders and all holders of any of the
Obligations; provided, however, that, notwithstanding anything in this
Agreement to the contrary, the Administrative Agent shall not be required to
take any action which exposes the Administrative Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or Applicable
Law.  Not in limitation of the foregoing,
the Administrative Agent may exercise any right or remedy it or the Lenders may
have under any Loan Document upon the occurrence of a Default or an Event of
Default


 


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unless
the Requisite Lenders have directed the Administrative Agent otherwise.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of the Requisite Lenders, or where applicable, all the Lenders.


 


Section 11.2.  Wells Fargo as Lender.


 


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


 


Section 11.3.  Approvals of Lenders.


 


All
communications from the Administrative Agent to any Lender requesting such
Lender’s determination, consent, approval or disapproval (a) shall be
given in the form of a written notice to such Lender, (b) shall be
accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise
such Lender where information, if any, regarding such matter or issue may be inspected,
or shall otherwise describe the matter or issue to be resolved, (c) shall
include, if reasonably requested by such Lender and to the extent not
previously provided to such Lender, written materials and, as appropriate, a
brief summary of all oral information provided to the Administrative Agent by
the Borrower in respect of the matter or issue to be resolved, and
(d) shall include the Administrative Agent’s recommended course of action
or determination in respect thereof. 
Unless a Lender shall give written notice to the Administrative Agent
that it specifically objects to the recommendation or determination of the
Administrative Agent (together with a reasonable written explanation of the
reasons behind such objection) within ten (10) Business Days (or such
lesser or greater period as may be specifically required under the express
terms of the Loan Documents) of receipt of such communication, such Lender
shall be deemed to have conclusively approved of or consented to such
recommendation or determination.


 


Section 11.4.  Notice of Events of Default.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a “notice of default.”  If any Lender (excluding the Lender which is
also serving as the Administrative Agent) becomes aware of any Default or Event
of Default, it shall promptly send to the Administrative Agent such a “notice
of default”.  Further, if the
Administrative


 


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Agent
receives such a “notice of default,” the Administrative Agent shall give prompt
notice thereof to the Lenders.


 


Section 11.5.  Administrative Agent’s Reliance.


 


Notwithstanding
any other provisions of this Agreement or any other Loan Documents, neither the
Administrative Agent nor any of its directors, officers, agents, employees or
counsel shall be liable for any action taken or not taken by it under or in
connection with this Agreement or any other Loan Document, except for its or
their own gross negligence or willful misconduct in connection with its duties
expressly set forth herein or therein as determined by a court of competent
jurisdiction in a final non-appealable judgment.  Without limiting the generality of the
foregoing, the Administrative Agent may consult with legal counsel (including
its own counsel or counsel for the Borrower or any other Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts.  Neither the Administrative Agent nor any of
its directors, officers, agents, employees or counsel: (a) makes any
warranty or representation to any Lender, the Issuing Bank or any other Person,
or shall be responsible to any Lender, the Issuing Bank or any other Person for
any statement, warranty or representation made or deemed made by the Borrower,
any other Loan Party or any other Person in or in connection with this Agreement
or any other Loan Document; (b) shall have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any other Loan Document or the satisfaction of
any conditions precedent under this Agreement or any Loan Document on the part
of the Borrower or other Persons, or to inspect the property, books or records
of the Borrower or any other Person; (c) shall be responsible to any
Lender or the Issuing Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document, any other instrument or document furnished pursuant
thereto or any collateral covered thereby or the perfection or priority of any
Lien in favor of the Administrative Agent on behalf of the Lenders, the Issuing
Bank and the Specified Derivatives Providers in any such collateral; (d) shall
have any liability in respect of any recitals, statements, certifications,
representations or warranties contained in any of the Loan Documents or any
other document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any liability under or in
respect of this Agreement or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telephone,
telecopy or electronic mail) believed by it to be genuine and signed, sent or
given by the proper party or parties. 
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents, employees or attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final non-appealable
judgment.


 


Section 11.6.  Indemnification of Administrative Agent.


 


Each
Lender agrees to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so) pro rata in accordance with such Lender’s respective Commitment
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, reasonable out-of-pocket costs
and expenses of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against the Administrative Agent (in its capacity
as Administrative Agent but not as a Lender) in any way relating to or arising
out of the Loan Documents, any transaction contemplated hereby or thereby or
any action taken or omitted by the Administrative Agent under the Loan
Documents (collectively, “Indemnifiable Amounts”); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent resulting from the Administrative Agent’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final,
non-appealable judgment; provided,


 


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however, that no
action taken in accordance with the directions of the Requisite Lenders (or all
of the Lenders, if expressly required hereunder) shall be deemed to constitute
gross negligence or willful misconduct for purposes of this Section.  Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Administrative Agent (to the
extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so) promptly upon demand for its ratable share of any
out-of-pocket expenses (including the reasonable fees and expenses of the
counsel to the Administrative Agent) incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, administration, or enforcement
(whether through negotiations, legal proceedings, or otherwise) of, or legal
advice with respect to the rights or responsibilities of the parties under, the
Loan Documents, any suit or action brought by the Administrative Agent to
enforce the terms of the Loan Documents and/or collect any Obligations, any “lender
liability” suit or claim brought against the Administrative Agent and/or the
Lenders, and any claim or suit brought against the Administrative Agent and/or
the Lenders arising under any Environmental Laws.  Such out-of-pocket expenses (including
counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent
will reimburse the Lenders if it is actually and finally determined by a court
of competent jurisdiction that the Administrative Agent is not so entitled to indemnification.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this Agreement.  If the Borrower shall reimburse the
Administrative Agent for any Indemnifiable Amount following payment by any
Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.


 


Section 11.7.  Lender Credit Decision, Etc.


 


Each
of the Lenders and the Issuing Bank expressly acknowledges and agrees that
neither the Administrative Agent nor any of its officers, directors, employees,
agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties to the Issuing Bank or such Lender and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Borrower, any other Loan Party or any other Subsidiary or
Affiliate, shall be deemed to constitute any such representation or warranty by
the Administrative Agent to the Issuing Bank or any Lender.  Each of the Lenders and the Issuing Bank
acknowledges that it has made its own credit and legal analysis and decision to
enter into this Agreement and the transactions contemplated hereby,
independently and without reliance upon the Administrative Agent, any other
Lender or counsel to the Administrative Agent, or any of their respective
officers, directors, employees, agents or counsel, and based on the financial
statements of the Borrower, the other Loan Parties, the other Subsidiaries and
other Affiliates, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the other Loan Parties, the other
Subsidiaries and other Persons, its review of the Loan Documents, the legal
opinions required to be delivered to it hereunder, the advice of its own
counsel and such other documents and information as it has deemed appropriate.  Each of the Lenders and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any other Lender or counsel to the Administrative Agent
or any of their respective officers, directors, employees and agents, and based
on such review, advice, documents and information as it shall deem appropriate
at the time, continue to make its own decisions in taking or not taking action
under the Loan Documents.  The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower or any other Loan Party of the Loan Documents or any
other document referred to or provided for therein or to inspect the properties
or books of, or make any other investigation of, the Borrower, any other Loan
Party or any other Subsidiary.  Except
for notices, reports and other documents and information expressly required to
be furnished to the Lenders and the Issuing Bank by the Administrative Agent
under this Agreement or any of the other Loan Documents or furnished to the


 


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Administrative
Agent for distribution to the Lenders and/or the Issuing Bank, the
Administrative Agent shall have no duty or responsibility to provide any Lender
or the Issuing Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or other
Affiliates.  Each of the Lenders and the
Issuing Bank acknowledges that the Administrative Agent’s legal counsel in
connection with the transactions contemplated by this Agreement is only acting
as counsel to the Administrative Agent and is not acting as counsel to any
Lender or the Issuing Bank.


 


Section 11.8.  Successor Administrative Agent.


 


The
Administrative Agent may (a) resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and
the Borrower or (b) be removed as Administrative Agent under the Loan
Documents for gross negligence or willful misconduct upon 30 days’ prior
written notice by all Lenders (other than the Lender then acting as
Administrative Agent).  Upon any such
resignation or removal, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent which appointment shall, provided no Default or
Event of Default exists, be subject to the Borrower’s approval, which approval
shall not be unreasonably withheld or delayed (except that the Borrower shall,
in all events, be deemed to have approved each Lender and any of its Affiliates
as a successor Administrative Agent).  If
no successor Administrative Agent shall have been so appointed in accordance
with the immediately preceding sentence, and shall have accepted such
appointment, within 30 days after the resigning Administrative Agent’s giving
of notice of resignation or giving of notice of removal of the Administrative
Agent, then the current Administrative Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Administrative Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be an
Eligible Assignee.  Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the current Administrative Agent, and the current Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents.  Such successor Administrative Agent shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or shall make other arrangements
satisfactory to the current Administrative Agent, in either case, to assume
effectively the obligations of the current Administrative Agent with respect to
such Letters of Credit.  After any
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article XI. shall continue to inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents. 
Notwithstanding anything contained herein to the contrary, the
Administrative Agent may assign its rights and duties under the Loan Documents
to any of its Affiliates by giving the Borrower and each Lender prior written
notice.


 


Section 11.9.  Titled Agents.


 


Each
of the Lead Arrangers, the Syndication Agent, and the Documentation Agents
(each a “Titled Agent”) in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, nor any duties as an
agent hereunder for the Lenders.  The
titles given to the Titled Agents are solely honorific and imply no fiduciary
responsibility on the part of the Titled Agents to the Administrative Agent,
any Lender, the Issuing Bank, the Borrower or any other Loan Party and the use
of such titles does not impose on the Titled Agents any duties or obligations
greater than those of any other Lender or entitle the Titled Agents to any
rights other than those to which any other Lender is entitled.


 


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ARTICLE XII. MISCELLANEOUS


 


Section 12.1.  Notices.


 


Unless
otherwise provided herein (including without limitation as provided in
Section 8.5.), communications provided for hereunder shall be in writing
and shall be mailed, telecopied, or delivered as follows:


 


If
to the Borrower:


 


Government Properties Income Trust


400 Centre Street


Newton, Massachusetts  02458


Attention:  Chief Financial
Officer


Telecopier:       (617)
219-1440


Telephone:       (617)
796-8267


 


If
to the Administrative Agent:


 


Wells Fargo Bank, National Association


101 Federal Street, 28th Floor


Boston, Massachusetts  02110


Attention: Frederick G. Bright, Vice President


Telecopier:       (617) 261-1604


Telephone:       (617)
574-6310


 


with
a copy to:


 


Wells Fargo Bank, National Association


301 South College Street


Charlotte, NC 28288


Attention: Amit Khimji


Telecopier:       (704) 383-6205


Telephone:       (704) 715-1347


 


with
a copy to:


 


Alston & Bird LLP


1201 West Peachtree Street


Atlanta, Georgia 30309


Attention: Paul M. Cushing, Esq.


Telecopier:       (404) 881-4777


Telephone:       (404) 881-7578


 


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If
to the Issuing Bank:


 


Wells Fargo Bank, National Association


101 Federal Street, 28th Floor


Boston, Massachusetts  02110


Attention: Frederick G. Bright, Vice President


Telecopier:       (617) 261-1604


Telephone:       (617)
574-6310


 


with
a copy to:


 


Wells Fargo Bank, National Association


301 South College Street


Charlotte, NC 28288


Attention: Amit Khimji


Telecopier:       (704) 383-6205


Telephone:       (704) 715-1347


 


If
to any other Lender:


 


To
such Lender’s address or telecopy number as set forth in the applicable
Administrative Questionnaire


 


or,
as to each party at such other address as shall be designated by such party in
a written notice to the other parties delivered in compliance with this
Section; provided, a Lender or the Issuing Bank shall only be required to give
notice of any such other address to the Administrative Agent and the
Borrower.  All such notices and other
communications shall be effective (i) if mailed, upon the first to occur
of receipt or the expiration of three (3) days after the deposit in the
United States Postal Service mail, postage prepaid and addressed to the address
of the Borrower or the Administrative Agent, the Issuing Bank and Lenders at
the addresses specified; (ii) if telecopied, when transmitted; (iii) if
hand delivered or sent by overnight courier, when delivered; or (iv) if
delivered in accordance with Section 8.5. to the extent applicable;
provided, however, that, in the case of the immediately preceding clauses (i), (ii) and
(iii), non-receipt of any communication as of the result of any change of
address of which the sending party was not notified or as the result of a
refusal to accept delivery shall be deemed receipt of such communication.  Notwithstanding the immediately preceding
sentence, all notices or communications to the Administrative Agent, the
Issuing Bank or any Lender under Article II. shall be effective only when
actually received.  None of the
Administrative Agent, the Issuing Bank or any Lender shall incur any liability
to any Loan Party (nor shall the Administrative Agent incur any liability to
the Issuing Bank or the Lenders) for acting upon any telephonic notice referred
to in this Agreement which the Administrative Agent, the Issuing Bank or such
Lender, as the case may be, believes in good faith to have been given by a
Person authorized to deliver such notice or for otherwise acting in good faith
hereunder.  Failure of a Person
designated to get a copy of a notice to receive such copy shall not affect the
validity of notice properly given to another Person.


 


Section 12.2.  Expenses.


 


The
Borrower agrees (a) to pay or reimburse the Administrative Agent for all
of its reasonable out-of-pocket costs and expenses incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expense and
reasonable travel expenses related to closing), and the consummation of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel


 


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to
the Administrative Agent and all costs and expenses of the Administrative Agent
in connection with the use of IntraLinks, SyndTrak or other similar information
transmission systems in connection with the Loan Documents and the reasonable
fees and disbursements of counsel to the Administrative Agent relating to all
such activities, (b) to pay or reimburse the Administrative Agent, the
Issuing Bank and the Lenders for all their reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
the Loan Documents and the Fee Letter, including the reasonable fees and
disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise
payable by the Lenders to the Administrative Agent pursuant to the Loan
Documents, (c) to pay, and indemnify and hold harmless the Administrative
Agent, the Issuing Bank and the Lenders from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any failure
to pay or delay in paying, documentary, stamp, excise and other similar taxes,
if any, which may be payable or determined to be payable in connection with the
execution and delivery of any of the Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, any Loan Document and (d) to the extent not already covered by
any of the preceding subsections, to pay or reimburse the fees and
disbursements of counsel to the Administrative Agent, the Issuing Bank and any
Lender incurred in connection with the representation of the Administrative
Agent, the Issuing Bank or such Lender in any matter relating to or arising out
of any bankruptcy or other proceeding of the type described in
Sections 10.1.(e) or 10.1.(f), including, without limitation
(i) any motion for relief from any stay or similar order, (ii) the
negotiation, preparation, execution and delivery of any document relating to
the Obligations and (iii) the negotiation and preparation of any
debtor-in-possession financing or any plan of reorganization of the Borrower or
any other Loan Party, whether proposed by the Borrower, such Loan Party, the
Lenders or any other Person, and whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.  If the Borrower shall fail to pay any amounts
required to be paid by it pursuant to this Section, the Administrative Agent
and/or the Lenders may pay such amounts on behalf of the Borrower and such
amounts shall be deemed to be Obligations owing hereunder.


 


Section 12.3.  Stamp, Intangible and Recording Taxes.


 


The
Borrower will pay any and all stamp, excise, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the
Administrative Agent and each Lender against any and all liabilities with
respect to or resulting from any delay in the payment or omission to pay any
such taxes, fees or charges, which may be payable or determined to be payable
in connection with the execution, delivery, recording, performance or
enforcement of this Agreement, the Notes and any of the other Loan Documents,
the amendment, supplement, modification or waiver of or consent under this
Agreement, the Notes or any of the other Loan Documents or the perfection of
any rights or Liens under this Agreement, the Notes or any of the other Loan
Documents.


 


Section 12.4.  Setoff.


 


Subject
to Section 3.3. and in addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, the
Borrower hereby authorizes the Administrative Agent, the Issuing Bank, each
Lender, each Affiliate of the Administrative Agent, the Issuing Bank or any
Lender, and each Participant, at any time or from time to time while an Event
of Default exists, without notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, but in the case of the Issuing Bank,
a Lender, an Affiliate of the Issuing Bank or a Lender, or a Participant,
subject to receipt of the prior written consent of the Requisite Lenders
exercised in their sole discretion, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the
Administrative Agent, the Issuing Bank, such Lender, any


 


85

















 


Affiliate
of the Administrative Agent, the Issuing Bank or such Lender, or such
Participant, to or for the credit or the account of the Borrower against and on
account of any of the Obligations, irrespective of whether or not any or all of
the Loans and all other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 10.2., and although such
Obligations shall be contingent or unmatured. 
Promptly following any such set-off the Agent shall notify the Borrower
thereof and of the application of such set-off, provided that the failure to
give such notice shall not invalidate such set-off.


 


Section 12.5.  Litigation; Jurisdiction; Other Matters;
Waivers.


 


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


 


(b)                                 EACH OF THE
BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND EACH LENDER HEREBY
AGREES THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND
ANY STATE COURT LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY OF THE LENDERS, ARISING OUT OF
THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR BY REASON OF ANY
OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER,
THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY OF THE LENDERS OF ANY KIND OR
NATURE RELATING TO ANY OF THE LOAN DOCUMENTS. 
THE BORROWER, THE ISSUING BANK AND EACH OF THE LENDERS EXPRESSLY SUBMIT
AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS.  EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME.  THE CHOICE OF FORUM SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY
ACTION BY THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER OR THE
ENFORCEMENT BY THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


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


 


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DOCUMENTS,
THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF
THIS AGREEMENT.


 


Section 12.6.  Successors and Assigns.


 


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


 


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


 


(i)                                     Minimum Amounts.


 


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


 


(B)                               in any case not
described in the immediately preceding subsection (A), the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date) shall not be less than $5,000,000, unless each of the Administrative
Agent and, so long as no Default or Event of Default shall exist, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed).


 


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


 


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


 


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(A)                               the consent of
the Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (x) a Default or Event of Default shall exist at the time
of such assignment or (y) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within 5 Business Days after having
received notice thereof; and


 


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


 


(C) the consent of the Swingline Lender and the
Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment in respect of a Commitment.


 


(iv)                              Assignment and
Acceptance; Notes.  The parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$4,500 for each assignment, and the assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Details Form.  If requested by the transferor Lender or the
Assignee, upon the consummation of any assignment, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that new Notes are issued to the Assignee and such transferor Lender, as
appropriate.


 


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


 


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


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to the
immediately following subsection (c), from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.10., 4.1., 4.4., 12.2. and 12.10.
and the other provisions of this Agreement and the other Loan Documents as
provided in Section 12.11.
with respect to facts and circumstances occurring prior to the effective date
of such assignment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with the immediately following subsection (d).


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Principal
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time


 


88

















 


(the
“Register”).  The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)                                 Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any  provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver of any provision of any Loan Document that
(i) increases such Lender’s Commitment, (ii) extends the date fixed
for the payment of principal on the Loans or portions thereof owing to such
Lender, or (iii) reduces the rate at which interest is payable
thereon.  Subject to the immediately
following subsection (e), the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.10., 4.1., 4.4.  to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by Applicable Law,
each Participant also shall be entitled to the benefits of Section 12.4. as though it were a Lender,
provided such Participant agrees to be subject to Section 3.3. as though it were a Lender.  Upon request from the Administrative Agent, a
Lender shall notify the Administrative Agent and the Borrower of the sale of
any participation hereunder.


 


(e)                                  Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under
Sections 3.10. and 4.1. than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.10. unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower
and the Administrative Agent, to comply with Section 3.10.(c) as though it were a
Lender.


 


(f)                                   Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)                                  No Registration.  Each Lender agrees that, without the prior
written consent of the Borrower and the Administrative Agent, it will not make
any assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under the Securities Act or any other securities laws of the United States
of America or of any other jurisdiction.


 


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Section 12.7.  Amendments and Waivers.


 


(a)           Generally.  Except as otherwise expressly provided in
this Agreement, (i) any consent or approval required or permitted by this
Agreement or any other Loan Document to be given by the Lenders may be given, (ii) any
term of this Agreement or of any other Loan Document may be amended, (iii) the
performance or observance by the Borrower, any other Loan Party or any other
Subsidiary of any terms of this Agreement or such other Loan Document may be
waived, and (iv) the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Requisite
Lenders (or the Administrative Agent at the written direction of the Requisite
Lenders), and, in the case of an amendment to any Loan Document, the written
consent of each Loan Party which is party thereto.


 


(b)           Certain Lender Consents.  Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing, and signed by Lenders having at
least 66 2/3% of the aggregate amount of the Commitments of all Lenders, or if
the Commitments have been terminated or reduced to zero, Lenders holding at
least 66 2/3% of the principal amount of the aggregate outstanding Loans and
Letter of Credit Liabilities, do any of the following:


 


(i)            amend any of the
financial covenants set forth in Section 9.1. or any of the definitions
related thereto, waive the performance or observance of any of the financial
covenants set forth in Section 9.1. or waive any Default or Event of
Default resulting from a breach of any of the financial covenants set forth in
Section 9.1.; or


 


(ii)           amend
Section 10.1.(l) or waive any Default or Event of Default occurring
under such Section.


 


(c)           Consent of Lenders Directly
Affected.  In addition to the
foregoing requirements, no amendment, waiver or consent shall, unless in
writing, and signed by each of the Lenders directly and adversely affected
thereby (or the Administrative Agent at the written direction of such Lenders),
do any of the following:


 


(i)            increase the
Commitments of the Lenders (excluding any increase as a result of an assignment
of Commitments permitted under Section 12.6. and any increases
contemplated under Section 2.15.)  or
subject the Lenders to any additional obligations;


 


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


 


(iii)          reduce the amount
of any Fees payable to the Lenders hereunder;


 


(iv)          modify the
definition of “Termination Date” (except in accordance with
Section 2.12.), or otherwise postpone any date fixed for any payment of
principal of, or interest on, any Loans or for the payment of Fees or any other
Obligations, or extend the expiration date of any Letter of Credit beyond the
Termination Date (except as permitted under Section 2.2.(b)) or, with
respect to any Letter of Credit having an expiration date beyond the Termination
Date as permitted by Section 2.2.(b), extend the expiration date of such
Letter of Credit;


 


(v)           modify the
definition of “Commitment Percentage” or amend or otherwise modify the
provisions of Section 3.2.;


 


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(vi)          amend this
Section 12.7. or amend any of the other definitions of the terms used in
this Agreement or the other Loan Documents insofar as such definitions affect
the substance of this Section 12.7.;


 


(vii)         modify the
definition of the term “Requisite Lenders” or modify in any other manner the
number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof;


 


(viii)        release any
Guarantor from its obligations under the Guaranty  except as
contemplated by Section 7.13.(b);


 


(ix)          waive a Default or
Event of Default under Section 10.1.(a); or


 


(x)           amend, or waive the
Borrower’s compliance with, Section 2.14.


 


(d)           Amendment of Administrative Agent’s
Duties, Etc.  No amendment, waiver
or consent unless in writing and signed by the Administrative Agent, in
addition to the Lenders required hereinabove to take such action, shall affect
the rights or duties of the Administrative Agent under this Agreement or any of
the other Loan Documents.  Any amendment,
waiver or consent relating to Section 2.3. or the obligations of the
Swingline Lender under this Agreement or any other Loan Document shall, in
addition to the Lenders required hereinabove to take such action, require the
written consent of the Swingline Lender. 
Any amendment, waiver or consent relating to Section 2.2. or the
obligations of the Issuing Bank under this Agreement or any other Loan Document
shall, in addition to the Lenders required hereinabove to take such action,
require the written consent of the Issuing Bank.  Any amendment, waiver or consent with respect
to any Loan Document that (i) diminishes the rights of a Specified
Derivatives Provider in a manner or to an extent dissimilar to that affecting
the Lenders or (ii) increases the liabilities or obligations of a
Specified Derivatives Provider shall, in addition to the Lenders required
hereinabove to take such action, require the consent of the Lender that is (or
having an Affiliate that is) such Specified Derivatives Provider.  No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon and any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. 
No course of dealing or delay or omission on the part of the
Administrative Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto.  Any Event
of Default occurring hereunder shall continue to exist until such time as such
Event of Default is waived in writing in accordance with the terms of this
Section, notwithstanding any attempted cure or other action by the Borrower,
any other Loan Party or any other Person subsequent to the occurrence of such Event
of Default.  Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.


 


Section 12.8.  Nonliability of Administrative Agent and
Lenders.


 


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


 


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Section 12.9.  Confidentiality.


 


Except
as otherwise provided by Applicable Law, each of the Administrative Agent, the
Issuing Bank and the Lenders shall maintain the confidentiality of all
Information (as defined below) in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe
and sound banking practices but in any event may make disclosure: (a) to
its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
actual or proposed Assignee, Participant or other transferee in connection with
a potential transfer of any Commitment or participation therein as permitted
hereunder, or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and
its obligations; (c) as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process or in
connection with any legal proceedings, or as otherwise required by Applicable
Law; (d) to the Administrative Agent’s, Issuing Bank’s or such Lender’s
independent auditors and other professional advisors (provided they shall be
notified of the confidential nature of the information); (e) in connection
with the exercise of any remedies under any Loan Document (or any Specified
Derivatives Contract) or any action or proceeding relating to any Loan Document
(or any such Specified Derivatives Contract) or the enforcement of rights
hereunder or thereunder; (f) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section actually
known by the Administrative Agent or such Lender to be a breach of this Section or
(ii) becomes available to the Administrative Agent, any Lender or any
Affiliate of the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower or any Affiliate of the Borrower;
(g) to the extent requested by, or required to be disclosed to, any
nationally recognized rating agency or regulatory or similar authority (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners) having or purporting to have jurisdiction over it; (h) to
bank trade publications, such information to consist of deal terms and other
information customarily found in such publications; (i) to any other party
hereto; and (j) with the consent of the Borrower. Notwithstanding the
foregoing, the Administrative Agent and each Lender may disclose any such
confidential information, without notice to the Borrower or any other Loan
Party, to Governmental Authorities in connection with any regulatory
examination of the Administrative Agent or such Lender or in accordance with
the regulatory compliance policy of the Administrative Agent or such Lender.  As used in this Section, the term “Information”
means all information received from the Borrower, any other Loan Party, any
other Subsidiary or Affiliate relating to any Loan Party or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis
prior to disclosure by the Borrower, any other Loan Party, any other Subsidiary
or any Affiliate, provided that, in the case of any such information received
from the Borrower, any other Loan Party, any other Subsidiary or any Affiliate
after the date hereof, such information is clearly identified at the time of
delivery as confidential.  Any Person
required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Section 12.10.  Indemnification.


 


(a)           The Borrower shall and hereby agrees
to indemnify, defend and hold harmless the Administrative Agent, the Issuing
Bank, the Lenders, all of the Affiliates of each of the Administrative Agent,
the Issuing Bank or any of the Lenders, and their respective directors,
officers, shareholders, agents, employees and counsel (each referred to herein
as an “Indemnified Party”) from and against any and all of the following
(collectively, the “Indemnified Costs”): 
losses, costs, claims, penalties, damages,


 


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liabilities,
deficiencies, judgments or expenses of every kind and nature (including,
without limitation, amounts paid in settlement, court costs and the fees and
disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith, but excluding Indemnified Costs indemnification in respect of which
is specifically covered by Section 3.10. or 4.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an “Indemnity Proceeding”)
which is in any way related directly or indirectly to: (i) this Agreement
or any other Loan Document or the transactions contemplated thereby;
(ii) the making of any Loans or issuance of Letters of Credit hereunder;
(iii) any actual or proposed use by the Borrower of the proceeds of the
Loans or Letters of Credit; (iv) the Administrative Agent’s, the Issuing
Bank’s or any Lender’s entering into this Agreement; (v) the fact that the
Administrative Agent, the Issuing Bank and the Lenders have established the
credit facility evidenced hereby in favor of the Borrower; (vi) the fact
that the Administrative Agent, the Issuing Bank and the Lenders are creditors
of the Borrower and have or are alleged to have information regarding the
financial condition, strategic plans or business operations of the Borrower and
the Subsidiaries; (vii) the fact that the Administrative Agent, the
Issuing Bank and the Lenders are material creditors of the Borrower and are
alleged to influence directly or indirectly the business decisions or affairs
of the Borrower and the Subsidiaries or their financial condition;
(viii) the exercise of any right or remedy the Administrative Agent, the
Issuing Bank or the Lenders may have under this Agreement or the other Loan
Documents provided, however, that the Borrower shall not be obligated to
indemnify any Indemnified Party for any acts or omissions of such Indemnified
Party in connection with matters described in this clause (viii) to
the extent arising from the gross negligence or willful misconduct of such
Indemnified Party, as determined by a court of competent jurisdiction in a
final, non-appealable judgment; (ix) any civil penalty or fine assessed by
the OFAC against, and all costs and expenses (including counsel fees and
disbursements) incurred in connection with defense thereof by, the
Administrative Agent, the Issuing Bank or any Lender as a result of conduct of
the Borrower, any other Loan Party or any other Subsidiary that violates a
sanction administered or enforced by the OFAC; or (x) any violation or
non-compliance by the Borrower or any Subsidiary of any Applicable Law
(including any Environmental Law) including, but not limited to, any Indemnity
Proceeding commenced by (A) the Internal Revenue Service or state taxing
authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to
cause the Borrower or its Subsidiaries (or its respective properties) (or the
Administrative Agent and/or the Lenders and/or the Issuing Bank as successors
to the Borrower) to be in compliance with such Environmental Laws.


 


(b)           The Borrower’s indemnification
obligations under this Section shall apply to all Indemnity Proceedings
arising out of, or related to, the foregoing whether or not an Indemnified
Party is a named party in such Indemnity Proceeding.  In this connection, this indemnification
shall cover all Indemnified Costs of any Indemnified Party in connection with
any deposition of any Indemnified Party or compliance with any subpoena
(including any subpoena requesting the production of documents).  This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in
their individual capacity or derivatively on behalf of the Borrower), any
account debtor of the Borrower or any Subsidiary or by any Governmental
Authority.


 


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


 


(d)           All out-of-pocket fees and expenses
of, and all amounts paid to third-persons by, an Indemnified Party shall be
advanced by the Borrower at the request of such Indemnified Party


 


93

















 


notwithstanding
any claim or assertion by the Borrower that such Indemnified Party is not
entitled to indemnification hereunder upon receipt of an undertaking by such
Indemnified Party that such Indemnified Party will reimburse the Borrower if it
is actually and finally determined by a court of competent jurisdiction that
such Indemnified Party is not so entitled to indemnification hereunder.


 


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


 


(f)            If and to the extent that the
obligations of the Borrower under this Section 12.10. are unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of such obligations which is permissible under
Applicable Law.


 


(g)           The Borrower’s obligations under this
Section 12.10. shall survive any termination of this Agreement and the
other Loan Documents and the payment in full in cash of the Obligations, and
are in addition to, and not in substitution of, any of the other obligations
set forth in this Agreement or any other Loan Document to which it is a party.


 


References
in this Section 12.10. to “Lender” or “Lenders” shall be deemed to include
such Persons (and their Affiliates) in their capacity as Specified Derivatives
Providers.


 


Section 12.11.  Termination; Survival.


 


This
Agreement shall terminate at such time as (a) all of the Commitments have
been terminated, (b) all Letters of Credit have terminated or expired or
been cancelled (other than Letters of Credit the expiration dates of which
extend beyond the Termination Date as permitted under Section 2.2.(b) and
in respect of which the Borrower has satisfied the requirements of such
Section), (c) none of the Lenders is obligated any longer under this
Agreement to make any Loans and the Issuing Bank is no longer obligated under
this Agreement to issue Letters of Credit and (d) all Obligations (other
than obligations which survive as provided in the following sentence) have been
paid and satisfied in full; provided, however, if on the Termination Date or
any other date the Commitments are terminated or reduced to zero (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise)
any Letters of Credit remain outstanding, then the provisions of this Agreement
applicable to Letters of Credit, including without limitation, the terms of Section 2.13 and the
Borrower’s reimbursement obligations under Section 2.2.(d), shall remain in effect until all such
Letters of Credit have expired, have been cancelled or have otherwise
terminated.  The indemnities to
which the Administrative Agent, the Issuing Bank and the Lenders are entitled
under the provisions of Sections 3.10., 4.1., 4.4., 11.6., 12.2. and
12.10. and any other provision of this Agreement and the other Loan Documents,
and the provisions of Sections 12.5. and 12.13, shall continue in full
force and effect and shall protect the Administrative


 


94

















 


Agent,
the Issuing Bank and the Lenders (i) notwithstanding any termination of
this Agreement, or of the other Loan Documents, against events arising after
such termination as well as before and (ii) at all times after any such
party ceases to be a party to this Agreement with respect to all matters and
events existing on or prior to the date such party ceased to be a party to this
Agreement.


 


Section 12.12.  Severability of Provisions.


 


If
any provision under this Agreement or the other Loan Documents shall be
determined by a court of competent jurisdiction to be invalid or unenforceable,
that provision shall be deemed severed from the Loan Documents, and the
validity, legality and enforceability of the remaining provisions shall remain
in full force as thought the invalid, illegal, or unenforceable provision had
never been part of the Loan Documents.


 


Section 12.13.  GOVERNING LAW.


 


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


 


Section 12.14.  Counterparts.


 


To
facilitate execution, this Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts as may be convenient
or required.  It shall not be necessary
that the signature of, or on behalf of, each party, or that the signature of
all persons required to bind any party, appear on each counterpart.  All counterparts shall collectively
constitute a single document.  It shall
not be necessary in making proof of this document to produce or account for
more than a single counterpart containing the respective signatures of, or on
behalf of, each of the parties hereto.


 


Section 12.15.  Obligations with Respect to Loan Parties.


 


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


 


Section 12.16.  Independence of Covenants.


 


All
covenants hereunder shall be given in any jurisdiction independent effect so
that if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or be otherwise within
the limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or condition exists.


 


Section 12.17.  Limitation of Liability.


 


None
of the Administrative Agent, the Issuing Bank or any Lender, or any affiliate,
officer, director, employee, attorney, or agent of the Administrative Agent,
the Issuing Bank or any Lender shall have any liability with respect to, and
the Borrower hereby waives, releases, and agrees not to sue any of them upon,
any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by the Borrower in connection with, arising out of, or in
any way related to, this Agreement, any of the other Loan Documents or the Fee
Letter, or any of the transactions contemplated by this Agreement or any of the
other Loan Documents.  The Borrower
hereby waives, releases, and agrees not to sue the


 


95

















 


Administrative
Agent, the Issuing Bank or any Lender or any of the Administrative Agent’s, the
Issuing Bank’s or any Lender’s affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement, any of the
other Loan Documents, the Fee Letter, or any of the transactions contemplated
by this Agreement or financed hereby.


 


Section 12.18.  Entire Agreement.


 


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


 


Section 12.19.  Construction.


 


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


 


Section 12.20.  Headings.


 


The
paragraph and section headings in this Agreement are provided for convenience
of reference only and shall not affect its construction or interpretation.


 


Section 12.21.  LIABILITY OF TRUSTEES, ETC.


 


THE
PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:


 


THE
AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING GOVERNMENT PROPERTIES
INCOME TRUST, DATED JUNE 8, 2009, AS AMENDED, AS FILED WITH THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF GOVERNMENT PROPERTIES INCOME TRUST
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, GOVERNMENT PROPERTIES INCOME TRUST. ALL
PERSONS DEALING WITH GOVERNMENT PROPERTIES INCOME TRUST IN ANY WAY SHALL LOOK
ONLY TO THE ASSETS OF GOVERNMENT PROPERTIES INCOME TRUST FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


[Signatures on Following Pages]


 


96

















 


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


 


 


	
   

  	
  GOVERNMENT
  PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David M. Blackman

  
	
   

  	
  Name:

  	
  David
  M. Blackman

  
	
   

  	
  Title:

  	
  Treasurer
  and Chief Financial Officer

  



 


[Signatures Continued on Next Page]


 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frederick G. Bright

  
	
   

  	
  Name:

  	
  Frederick
  G. Bright

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


[Signatures Continued on Next Page]


 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


 


	
   

  	
  Bank of America, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael W. Edwards

  
	
   

  	
  Name:

  	
  Michael
  W. Edwards

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 
















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


	
  U.S. BANK NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Heller

  
	
   

  	
  Name:
  

  	
  David
  Heller

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


	
  REGIONS BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas K. Day

  
	
   

  	
  Name:

  	
  Thomas
  K. Day

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


	
  ROYAL BANK OF CANADA, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dan LePage

  
	
   

  	
  Name:
  

  	
  Dan
  LePage

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 






 












 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


CAPITAL ONE, N.A., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  Frederick H. Denecke

  
	
   

  	
  Name:
  

  	
  Frederick
  H. Denecke

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


PNC BANK, NATIONAL ASSOCIATION, as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  Andrew D. Coler

  
	
   

  	
  Name:
  

  	
  Andrew
  D. Coler

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


TD BANK, N.A., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  Paula Mello

  
	
   

  	
  Name:
  

  	
  Paula
  Mello

  
	
   

  	
  Title:
  

  	
  Vice
  President/Relationship Manager

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


SCOTIABANC INC., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  J.F. Todd

  
	
   

  	
  Name:
  

  	
  J.F.
  Todd

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  



 
















 


[Signature
Page to Credit Agreement with Government Properties Income Trust]


 


 


	
  COMPASS BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ S. Kent Gorman

  
	
   

  	
  Name:

  	
  S. Kent Gorman

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 

















 


[Signature
Page to Credit Agreement with Government Properties Income Trust]


 


 


	
  SOVEREIGN BANK, as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Everly

  
	
   

  	
  Name:

  	
  John Everly

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


[Signature
Page to Credit Agreement with Government Properties Income Trust]


 


 


	
  SUMITOMO MITSUI BANKING
  CORPORATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Ginn

  
	
   

  	
  Name:

  	
  William M. Ginn

  
	
   

  	
  Title:

  	
  Executive Officer

  



 
















 


[Signature Page to Credit Agreement with Government
Properties Income Trust]


 


 


	
   

  	
  BRANCH
  BANKING AND TRUST COMPANY, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ahaz A. Armstrong

  
	
   

  	
  Name:
  

  	
  Ahaz
  A. Armstrong

  
	
   

  	
  Title:  

  	
  Assistant
  Vice President

  
				



 

















 


[Signature
Page to Credit Agreement with Government Properties Income Trust]


 


 


	
   

  	
  COMERICA
  BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Casey L. Stevenson

  
	
   

  	
  Name:

  	
  Casey
  L. Stevenson

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 






 












 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


UNION BANK, N.A., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  Andrew Romanosky

  
	
   

  	
  Name:

  	
  Andrew
  Romanosky

  
	
   

  	
  Title:
  

  	
  Senior
  Real Estate Loan Officer

  



 

















 


[Signature Page to Credit Agreement with Government
Properties Income Trust]


 


RBS CITIZENS, N.A., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  Lisa Greeley

  
	
   

  	
  Name:

  	
  Lisa
  Greeley

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 

















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


CITIBANK, N.A., as a Lender


 


 


	
   

  	
  By:
  

  	
  /s/
  John Rowland

  
	
   

  	
  Name:

  	
  John
  Rowland

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 
















 


[Signature Page to Credit Agreement with
Government Properties Income Trust]


 


	
  Morgan Stanley Senior Funding, Inc., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ryan Vetsch

  
	
   

  	
  Name:

  	
  Ryan
  Vetsch

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


[Signature Page to Credit Agreement with Government
Properties Income Trust]


 


	
  UBS LOAN FINANCE LLC, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Irja R. Otsa

  
	
   

  	
  Name:

  	
  Irja
  R. Otsa

  
	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary E. Evans

  
	
   

  	
  Name:

  	
  Mary
  E. Evans

  
	
   

  	
  Title:

  	
  Associate
  Director

  



 
















 


SCHEDULE I


 


Commitments


 


	
  Lender

  	
   

  	
  Commitment Amount

  	
   

  
	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  BANK OF AMERICA, N.A.

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  U.S. BANK NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  REGIONS BANK

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  ROYAL BANK OF CANADA

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  CAPITAL ONE, N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  PNC BANK, NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  TD BANK, N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  SCOTIABANC INC.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  COMPASS BANK

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  SOVEREIGN BANK

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  SUMITOMO MITSUI BANKING CORPORATION

  	
   

  	
  $

  	
  17,500,000

  	
   

  
	
  BRANCH BANKING AND TRUST COMPANY

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  COMERICA BANK

  	
   

  	
  $

  	
  22,500,000

  	
   

  
	
  UNION BANK, N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  RBS CITIZENS, N.A.

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  CITIBANK, N.A.

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  MORGAN STANLEY SENIOR FUNDING, INC.

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  UBS LOAN FINANCE LLC

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  500,000,000

  	
   

  



 
















 


SCHEDULE 1.1


 


List of Loan Parties


 


 


Government Properties Income Trust LLC


GPT Properties Trust


GPT Properties LLC


GOV Lakewood Properties Trust


GPT Realty Trust


GOV Grand Oak Properties Trust


 

















 


SCHEDULE 6.1(b)


 


Ownership Structure


 


 


Part I (Subsidiaries)


 


	
  Entity and Jurisdiction

  of Organization

  	
   

  	
  Ownership Structure

  	
   

  	
  Material 

  Subsidiary

  	
   

  	
  Excluded 

  Subsidiary

  
	
  Government
  Properties Income Trust LLC (Delaware)

  	
   

  	
  Government
  Properties Income Trust — 100% membership
  interest.

  	
   

  	
  X

  	
   

  	
   

  
	
  GPT
  Properties Trust (Maryland)

  	
   

  	
  Government
  Properties Income Trust owns 1,000 shares of beneficial interest, $.01 par
  value, representing 100% ownership.

  	
   

  	
  X

  	
   

  	
   

  
	
  GPT
  Properties LLC (Delaware)

  	
   

  	
  Government
  Properties Income Trust — 100% membership
  interest.

  	
   

  	
  X

  	
   

  	
   

  
	
  GOV Lakewood Properties Trust (Maryland)

  	
   

  	
  Government
  Properties Income Trust owns 1,000 shares of beneficial interest, $.01 par
  value, representing 100% ownership.

  	
   

  	
   

  	
   

  	
   

  
	
  GOV Grand Oak Properties Trust (Maryland)

  	
   

  	
  Government
  Properties Income Trust owns 1,000 shares of beneficial interest, $.01 par
  value, representing 100% ownership.

  	
   

  	
   

  	
   

  	
   

  
	
  GPT Realty Trust (Nominee Trust – Massachusetts)

  	
   

  	
  GPT Properties Trust is the 100% beneficiary.

  	
   

  	
  X

  	
   

  	
   

  
	
  3300 75th Avenue LLC (Delaware)

  	
   

  	
  Government
  Properties Income Trust — 100% membership
  interest.

  	
   

  	
   

  	
   

  	
  X

  



 


Part II (Unconsolidated Affiliates)


 


1.              Affiliates Insurance
Company, an Indiana insurance company — 20,000 shares (14.29%)


 

















 


SCHEDULE 6.1(f)


 


Title To Properties; Liens


 


Part I
(Real Property)


 


	
  OWNER

  	
   

  	
  STREET

  	
   

  	
  CITY

  	
   

  	
  STATE

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  201
  E. Indianola Avenue

  	
   

  	
  Phoenix

  	
   

  	
  AZ

  
	
  GPT
  Properties Trust

  	
   

  	
  711
  14th Avenue

  	
   

  	
  Safford

  	
   

  	
  AZ

  
	
  GPT
  Properties Trust

  	
   

  	
  3285
  E. Hemisphere Loop

  	
   

  	
  Tucson

  	
   

  	
  AZ

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5045
  East Butler Avenue

  	
   

  	
  Fresno

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  915
  L Street

  	
   

  	
  Sacramento

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  9800
  Goethe Road

  	
   

  	
  Sacramento

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4560
  Viewridge Avenue

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  9797
  Aero Drive

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  9174
  Sky Park Centre

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  4181
  Ruffin Road

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  16194
  West 45th Drive

  	
   

  	
  Golden

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7201
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7301
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7401
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  GOV
  Lakewood Properties Trust

  	
   

  	
  12795
  W. Alameda Parkway

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  20
  Massachusetts Avenue NW

  	
   

  	
  Washington

  	
   

  	
  DC

  
	
  GPT
  Properties Trust

  	
   

  	
  625
  Indiana Avenue NW

  	
   

  	
  Washington

  	
   

  	
  DC

  
	
  GOV
  Grand Oak Properties Trust

  	
   

  	
  8900
  Grand Oak Circle

  	
   

  	
  Tampa

  	
   

  	
  FL

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  12
  Executive Park Drive

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  1
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  8
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  10
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  11
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  12
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  GPT
  Properties LLC

  	
   

  	
  220
  E. Bryan Street

  	
   

  	
  Savannah

  	
   

  	
  GA

  
	
  GPT
  Properties LLC

  	
   

  	
  2020
  S. Arlington Heights Road

  	
   

  	
  Arlington
  Heights

  	
   

  	
  IL

  
	
  GPT
  Properties Trust

  	
   

  	
  400
  State Avenue

  	
   

  	
  Kansas
  City

  	
   

  	
  KS

  
	
  GPT
  Properties Trust

  	
   

  	
  251
  Causeway Street

  	
   

  	
  Boston

  	
   

  	
  MA

  
	
  GPT
  Realty Trust

  	
   

  	
  75
  Pleasant Street

  	
   

  	
  Malden

  	
   

  	
  MA

  
	
  GPT
  Realty Trust

  	
   

  	
  One
  Montvale Avenue

  	
   

  	
  Stoneham

  	
   

  	
  MA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4201
  Patterson Avenue

  	
   

  	
  Baltimore

  	
   

  	
  MD

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  20400
  Century Boulevard

  	
   

  	
  Germantown

  	
   

  	
  MD

  
	
  3300
  75th Avenue LLC

  	
   

  	
  3300
  75th Avenue

  	
   

  	
  Landover

  	
   

  	
  MD

  



 

















 


	
  GPT
  Properties Trust

  	
   

  	
  4700
  River Road

  	
   

  	
  Riverdale

  	
   

  	
  MD

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  1401
  Rockville Pike

  	
   

  	
  Rockville

  	
   

  	
  MD

  
	
  GPT
  Properties Trust

  	
   

  	
  11411
  and 11519 E. Jefferson Avenue

  	
   

  	
  Detroit

  	
   

  	
  MI

  
	
  GPT
  Properties Trust

  	
   

  	
  The
  Towle Building, 330 South Second Avenue

  	
   

  	
  Minneapolis

  	
   

  	
  MN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2645
  and 2655 Long Lake Road

  	
   

  	
  Roseville

  	
   

  	
  MN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4241
  and 4300 NE 34th Street

  	
   

  	
  Kansas
  City

  	
   

  	
  MO

  
	
  GPT
  Properties Trust

  	
   

  	
  10-12
  Celina Drive

  	
   

  	
  Nashua

  	
   

  	
  NH

  
	
  GPT
  Properties Trust

  	
   

  	
  435
  Montano Boulevard

  	
   

  	
  Albuquerque

  	
   

  	
  NM

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  130-138
  Delaware Avenue

  	
   

  	
  Buffalo

  	
   

  	
  NY

  
	
  GPT
  Properties Trust

  	
   

  	
  55
  North Robinson Avenue

  	
   

  	
  Oklahoma
  City

  	
   

  	
  OK

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  110
  Centerview Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  101
  Executive Center Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  111
  Executive Center Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  One
  Memphis Place, 200 Jefferson Avenue

  	
   

  	
  Memphis

  	
   

  	
  TN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  701
  Clay Street

  	
   

  	
  Waco

  	
   

  	
  TX

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5600
  Columbia Pike

  	
   

  	
  Falls
  Church

  	
   

  	
  VA

  
	
  GPT
  Properties Trust

  	
   

  	
  65
  Bowdoin Street

  	
   

  	
  South
  Burlington

  	
   

  	
  VT

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2420
  Stevens Circle

  	
   

  	
  Richland

  	
   

  	
  WA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2430
  Stevens Circle

  	
   

  	
  Richland

  	
   

  	
  WA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  882
  TJ Jackson Drive

  	
   

  	
  Falling
  Waters

  	
   

  	
  WV

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5353
  Yellowstone Road

  	
   

  	
  Cheyenne

  	
   

  	
  WY

  



 

















 


SCHEDULE 6.1(f)


 


Title To Properties; Liens


 


Part II
(Permitted Liens)


 


12795 W. Alameda Parkway,
Lakewood, CO — GOV Lakewood Properties Trust (Assumed January 15, 2010)


 


Deed
of Trust and Security Agreement, dated as of January 29, 2001, by Alameda
NatPark LLC to Public Trustee of the County of Jefferson, State of Colorado for
the benefit of State Farm Life Insurance Company, and recorded February 2,
2001 as document no. F1178595 in Jefferson County, Colorado (Secured)


 


Assignment
of Rents and Leases, dated as of January 29, 2001, by Alameda NatPark LLC
in favor of State Farm Life Insurance Company and recorded February 2,
2001 as document no. F1178596 in Jefferson County, Colorado (Secured)


 


Assumption
Agreement and Modification of Loan Documents, dated as of January 15,
2010, among State Farm Life Insurance Company, Alameda NatPark LLC, GOV
Lakewood Properties Trust and Government Properties Income Trust and recorded January 15,
2010 as document no. 2010005002 in Jefferson County, Colorado (Secured)


 


3300 75th Avenue, Landover, MD — 3300 75th Avenue LLC (Assumed February 26, 2010)


 


Deed
of Trust and Absolute Assignment of Rents and Leases and Security Agreement
(and Fixture Filing), dated as of July 31, 2006, between ACP/3300 75th Avenue Associates LLC, Paul J. Beever and
Mortgage Electronic Registration Systems, Inc., as nominee for Wells Fargo
Bank, National Association, filed in Book 25710, Page 357 with the Clerk
of the Circuit Court (Land Records) for Prince George’s County, Maryland
(Secured)


 


Assumption
Agreement, dated as of February 26, 2010, by Bank of America, National
Association, as successor by merger to LaSalle Bank National Association, as
Trustee for Bear Sterns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass Through Certificates, Series 2006-PWR13, ACP/3300 75th Avenue Associates LLC and 3300 75th Avenue LLC, a Memorandum of which is dated as
of February 26, 2010 and filed in Book 31468, Page 193 with the Clerk
of the Circuit Court (Land Records) for Prince George’s County, Maryland
(Secured)


 


8900 Grand Oak Circle,
Tampa, FL — GOV Grand Oak Properties Trust (Assumed October 15, 2010)


 


Amended and Restated
Mortgage, Security Agreement, Fixture Filing, Financing Statement and
Assignment of Leases and Rents given by Capital Realty Grand Oak, LLC (formerly
known as CRI Hidden River, LLC, a Florida limited liability company (“CRI
Hidden River”)), in favor of, and for the use and benefit of, System Retirement
Trust Fund, a trust fund organized under the laws of the State of Colorado, as
Mortgagee, dated as of February 2, 2009, and recorded in the 


 

















 


Public Records of
Hillsborough County, Florida on February 3, 2009, as Instrument No. 2009034983,
Official Records Book 19078, Page 1950, as assigned to CPL 8900 Grand Oak
Circle LLC pursuant to the Assignment of Amended and Restated Mortgage, Security
Agreement, Fixture Filing, Financing Statement and Assignment of Leases and
Rents between System Retirement Trust Fund, a trust fund organized under the
laws of the State of Colorado and CPL 8900 Grand Oak Circle LLC, dated as of
January 1, 2010 and recorded in the Records on January 4, 2010, as
Instrument No. 2010000270, Official Records Book 19646, Page 1000,
amending and restating (A) that certain Mortgage, Security Agreement and
Fixture Filing made by CRI Hidden River, to, in favor of, and for the benefit
of State Farm Bank, F.S.B., a Federal savings bank, dated October 17,
2006, and recorded October 18, 2006, as Instrument No. 2006503129,
Official Records Book 17081, Page 1822, the Records, as assigned from
State Farm Bank, F.S.B., a Federal savings bank, to System Retirement Trust
Fund, a trust fund organized under the laws of the State of Colorado, pursuant
to that certain Assignment of Mortgage and Notes recorded in the Records on
February 3, 2009, as Instrument No. 2009034982, Official Records Book
19078, Page 1944; and (B) that certain Assignment of Rents and Leases
made by CRI Hidden River to, in favor of and for the benefit of State Farm
Bank, F.S.B., a Federal savings bank, dated October 17, 2006, and recorded
in the Records on October 18, 2006, as Instrument No. 2006503130,
Official Records Book 17081, Page 1864, as assigned from State Farm Bank,
F.S.B., a Federal savings bank, to System Retirement Trust Fund, a trust fund
organized under the laws of the State of Colorado, pursuant to that certain
Assignment of Mortgage and Notes recorded in the Records on February 3,
2009, as Instrument No. 2009034982, Official Records Book 19078, Page 1944
(Secured)


 


Assignment,
Assumption and Release Agreement dated as of October 15, 2010, and
recorded on October 19, 2010 in the Public Records of Hillsborough County,
Florida, Official Records Book 20150, Page 54, by and among Capital Realty
Grand Oak, LLC, Donald Wallace, Ben Wacksman, GOV Grand Oak Properties Trust,
Government Properties Income Trust and CPL 8900 Grand Oak Circle LLC (Secured)


 
















 


SCHEDULE 6.1(g)(1)


 


Indebtedness and Guaranties


 


12795 W. Alameda Parkway,
Lakewood, CO — GOV Lakewood Properties Trust (Assumed January 15, 2010)


 


Promissory
Note, dated as of January 29, 2001, from Alameda NatPark LLC to State Farm
Life Insurance Company (Secured) ($11,144,000)


 


Deed
of Trust and Security Agreement, dated as of January 29, 2001, by Alameda
NatPark LLC to Public Trustee of the County of Jefferson, State of Colorado for
the benefit of State Farm Life Insurance Company, and recorded February 2,
2001 as document no. F1178595 in Jefferson County, Colorado (Secured)
($11,144,000)


 


Assumption
Agreement and Modification of Loan Documents, dated as of January 15,
2010, among State Farm Life Insurance Company, Alameda NatPark LLC, GOV
Lakewood Properties Trust and Government Properties Income Trust and recorded January 15,
2010 as document no. 2010005002 in Jefferson County, Colorado (Secured)
($11,144,000)


 


Guaranty
Agreement, dated as of January 15, 2010, from Government Properties Income
Trust to State Farm Life Insurance Company (Secured) ($11,144,000)


 


3300 75th Avenue, Landover, MD — 3300 75th Avenue LLC (Assumed February 26, 2010)


 


Promissory
Note Secured by Security Instrument, dated as of July 31, 2006, from
ACP/3300 75th Avenue Association LLC to Wells Fargo Bank,
National Association (Secured) ($24,800,000)


 


Deed
of Trust and Absolute Assignment of Rents and Leases and Security Agreement
(and Fixture Filing), dated as of July 31, 2006, between ACP/3300 75th Avenue Associates LLC, Paul J. Beever and
Mortgage Electronic Registration Systems, Inc., as nominee for Wells Fargo
Bank, National Association, filed in Book 25710, Page 357 with the Clerk
of the Circuit Court (Land Records) for Prince George’s County, Maryland
(Secured) ($24,800,000)


 


Assumption
Agreement, dated as of February 26, 2010, by Bank of America, National
Association, as successor by merger to LaSalle Bank National Association, as
Trustee for Bear Sterns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass Through Certificates, Series 2006-PWR13, ACP/3300 75th Avenue Associates LLC and 3300 75th Avenue LLC, a Memorandum of which is dated as
of February 26, 2010 and filed in Book 31468, Page 193 with the Clerk
of the Circuit Court (Land Records) for Prince George’s County, Maryland
(Secured) ($24,800,000)


 






(1)   Amounts stated in Schedule
6.1(g) represent the unpaid principal balance as of June 30, 2010 or
with respect to 8900 Grand Oak Circle, Tampa, Florida, the unpaid principal
balance on the date of assumption.


 

















 


Limited
Guaranty, dated as of February 26, 2010, from Government Properties Income
Trust to Bank of America, National Association, as successor by Merger to
LaSalle Bank National Association, as Trustee for the registered holders of
Bear Stearns Commercial Mortgage Securities Inc., Mortgage Pass-Through
Certificates, Series 2006-PWR-13 (Secured) ($24,800,000)


 


8900 Grand Oak Circle,
Tampa, FL — GOV Grand Oak Properties Trust (Assumed October 15, 2010)


 


Consolidated, Amended and
Restated Promissory Note, dated as of February 2, 2009, made by Capital
Realty Grand Oak, LLC to the order of the System Retirement Trust Fund
(Secured) ($9,755,143)


 


Amended and Restated
Mortgage, Security Agreement, Fixture Filing, Financing Statement and
Assignment of Leases and Rents given by Capital Realty Grand Oak, LLC (formerly
known as CRI Hidden River, LLC, a Florida limited liability company (“CRI
Hidden River”)), in favor of, and for the use and benefit of, System Retirement
Trust Fund, a trust fund organized under the laws of the State of Colorado, as
Mortgagee, dated as of February 2, 2009, and recorded in the Public
Records of Hillsborough County, Florida on February 3, 2009, as Instrument
No. 2009034983, Official Records Book 19078, Page 1950, as assigned
to CPL 8900 Grand Oak Circle LLC pursuant to the Assignment of Amended and
Restated Mortgage, Security Agreement, Fixture Filing, Financing Statement and
Assignment of Leases and Rents between System Retirement Trust Fund, a trust
fund organized under the laws of the State of Colorado and CPL 8900 Grand Oak
Circle LLC, dated as of January 1, 2010 and recorded in the Records on
January 4, 2010, as Instrument No. 2010000270, Official Records Book
19646, Page 1000, amending and restating (A) that certain Mortgage,
Security Agreement and Fixture Filing made by CRI Hidden River, to, in favor
of, and for the benefit of State Farm Bank, F.S.B., a Federal savings bank,
dated October 17, 2006, and recorded October 18, 2006, as Instrument No. 2006503129,
Official Records Book 17081, Page 1822, the Records, as assigned from
State Farm Bank, F.S.B., a Federal savings bank, to System Retirement Trust
Fund, a trust fund organized under the laws of the State of Colorado, pursuant
to that certain Assignment of Mortgage and Notes recorded in the Records on
February 3, 2009, as Instrument No. 2009034982, Official Records Book
19078, Page 1944; and (B) that certain Assignment of Rents and Leases
made by CRI Hidden River to, in favor of and for the benefit of State Farm
Bank, F.S.B., a Federal savings bank, dated October 17, 2006, and recorded
in the Records on October 18, 2006, as Instrument No. 2006503130,
Official Records Book 17081, Page 1864, as assigned from State Farm Bank,
F.S.B., a Federal savings bank, to System Retirement Trust Fund, a trust fund
organized under the laws of the State of Colorado, pursuant to that certain
Assignment of Mortgage and Notes recorded in the Records on February 3,
2009, as Instrument No. 2009034982, Official Records Book 19078, Page 1944
(Secured) ($9,755,143)


 


Assignment,
Assumption and Release Agreement dated as of October 15, 2010, and
recorded on October 19, 2010 in the Public Records of Hillsborough County,
Florida, Official Records Book 20150, Page 54, by and among Capital Realty
Grand Oak, LLC, Donald Wallace, Ben Wacksman, GOV Grand Oak Properties Trust,
Government Properties Income Trust and CPL 8900 Grand Oak Circle LLC (Secured)
($9,755,143)


 

















 


Guaranty
Agreement, dated as of October 15, 2010, from Government Properties Income
Trust to CPL 8900 Grand Oak Circle LLC (Secured) ($9,755,143)


 

















 


SCHEDULE 6.1(h)


 


Material Contracts


 


1.                                       Transaction
Agreement, dated June 8, 2009, between the Borrower and CommonWealth REIT
(f/k/a HRPT Properties Trust).


 


2.                                       Business
Management Agreement, dated June 8, 2009, between the Borrower and Reit
Management & Research LLC.


 


3.                                       Property
Management Agreement, dated June 8, 2009, between the Borrower and Reit
Management & Research LLC.


 


4.                                       Lease for 5045
East Butler Avenue, Fresno, California, between the Borrower and the United
States of America (through the General Services Administration), dated November 28,
2001, as amended.


 


5.                                       Amended and
Restated Shareholders Agreement, dated December 16, 2009, among the
Borrower, Affiliates Insurance Company, Five Star Quality Care, Inc.,
Hospitality Properties Trust, CommonWealth REIT (f/k/a HRPT Properties Trust),
Senior Housing Properties Trust, TravelCenters of America LLC and Reit
Management & Research LLC.


 

















 


SCHEDULE 6.1(i)


 


Litigation


 


None.


 

















 


SCHEDULE 6.1(s)


 


Affiliate Transactions


 


1.               Transaction Agreement, dated
June 8, 2009, by and between the Borrower and CommonWealth REIT (f/k/a
HRPT Properties Trust)


 


2.               Business Management
Agreement, dated June 8, 2009, between the Borrower and Reit Management &
Research LLC.


 


3.               Property Management
Agreement, dated June 8, 2009, between the Borrower and Reit Management &
Research LLC.


 


4.               Property Management
Agreement, dated as of January 15, 2010, by and between GOV Lakewood
Properties Trust and Reit Management & Research LLC (12795 W. Alameda
Parkway, Lakewood, CO)


 


5.               Property Management
Agreement, dated as of February 26, 2010, by and between 3300 75th Avenue LLC and Reit Management &
Research LLC (3300 75th Avenue, Landover, MD)


 


6.               Property Management
Agreement, dated as of October 15, 2010, by and between GOV Grand Oak
Properties Trust and Reit Management & Research LLC (8900 Grand Oak
Circle, Tampa, FL)


 


7.               Amended and Restated
Shareholders Agreement, dated December 16, 2009, among the Borrower,
Affiliates Insurance Company, Five Star Quality Care, Inc., Hospitality
Properties Trust, CommonWealth REIT (f/k/a HRPT Properties Trust), Senior
Housing Properties Trust, TravelCenters of America LLC and Reit Management &
Research LLC.


 

















 


SCHEDULE 6.1(z)


 


List
of Unencumbered Assets and Unencumbered Mortgage Notes


 


Part I
(Unencumbered Assets)


 


	
  OWNER

  	
   

  	
  STREET

  	
   

  	
  CITY

  	
   

  	
  STATE

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  201
  E. Indianola Avenue

  	
   

  	
  Phoenix

  	
   

  	
  AZ

  
	
  GPT
  Properties Trust

  	
   

  	
  711
  14th Avenue

  	
   

  	
  Safford

  	
   

  	
  AZ

  
	
  GPT
  Properties Trust

  	
   

  	
  3285
  E. Hemisphere Loop

  	
   

  	
  Tucson

  	
   

  	
  AZ

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5045
  East Butler Avenue

  	
   

  	
  Fresno

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  915
  L Street

  	
   

  	
  Sacramento

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  9800
  Goethe Road

  	
   

  	
  Sacramento

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4560
  Viewridge Avenue

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  9797
  Aero Drive

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  9174
  Sky Park Centre

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  GPT
  Properties Trust

  	
   

  	
  4181
  Ruffin Road

  	
   

  	
  San
  Diego

  	
   

  	
  CA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  16194
  West 45th Drive

  	
   

  	
  Golden

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7201
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7301
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  7401
  West Mansfield Avenue

  	
   

  	
  Lakewood

  	
   

  	
  CO

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  20
  Massachusetts Avenue NW

  	
   

  	
  Washington

  	
   

  	
  DC

  
	
  GPT
  Properties Trust

  	
   

  	
  625
  Indiana Avenue NW

  	
   

  	
  Washington

  	
   

  	
  DC

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  12
  Executive Park Drive

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  1
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  8
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  10
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  11
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  12
  Corporate Boulevard

  	
   

  	
  Atlanta

  	
   

  	
  GA

  
	
  GPT
  Properties LLC

  	
   

  	
  220
  E. Bryan Street

  	
   

  	
  Savannah

  	
   

  	
  GA

  
	
  GPT
  Properties LLC

  	
   

  	
  2020
  S. Arlington Heights Road

  	
   

  	
  Arlington
  Heights

  	
   

  	
  IL

  
	
  GPT
  Properties Trust

  	
   

  	
  400
  State Avenue

  	
   

  	
  Kansas
  City

  	
   

  	
  KS

  
	
  GPT
  Properties Trust

  	
   

  	
  251
  Causeway Street

  	
   

  	
  Boston

  	
   

  	
  MA

  
	
  GPT
  Realty Trust

  	
   

  	
  75
  Pleasant Street

  	
   

  	
  Malden

  	
   

  	
  MA

  
	
  GPT
  Realty Trust

  	
   

  	
  One
  Montvale Avenue

  	
   

  	
  Stoneham

  	
   

  	
  MA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4201
  Patterson Avenue

  	
   

  	
  Baltimore

  	
   

  	
  MD

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  20400
  Century Boulevard

  	
   

  	
  Germantown

  	
   

  	
  MD

  
	
  GPT
  Properties Trust

  	
   

  	
  4700
  River Road

  	
   

  	
  Riverdale

  	
   

  	
  MD

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  1401
  Rockville Pike

  	
   

  	
  Rockville

  	
   

  	
  MD

  
	
  GPT
  Properties Trust

  	
   

  	
  11411
  and 11519 E. Jefferson Avenue

  	
   

  	
  Detroit

  	
   

  	
  MI

  



 

















 


	
  GPT
  Properties Trust

  	
   

  	
  The
  Towle Building, 330 South Second Avenue

  	
   

  	
  Minneapolis

  	
   

  	
  MN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2645
  and 2655 Long Lake Road

  	
   

  	
  Roseville

  	
   

  	
  MN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  4241
  and 4300 NE 34th Street

  	
   

  	
  Kansas
  City

  	
   

  	
  MO

  
	
  GPT
  Properties Trust

  	
   

  	
  10-12
  Celina Drive

  	
   

  	
  Nashua

  	
   

  	
  NH

  
	
  GPT
  Properties Trust

  	
   

  	
  435
  Montano Boulevard

  	
   

  	
  Albuquerque

  	
   

  	
  NM

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  130-138
  Delaware Avenue

  	
   

  	
  Buffalo

  	
   

  	
  NY

  
	
  GPT
  Properties Trust

  	
   

  	
  55
  North Robinson Avenue

  	
   

  	
  Oklahoma
  City

  	
   

  	
  OK

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  110
  Centerview Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  101
  Executive Center Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  111
  Executive Center Drive

  	
   

  	
  Columbia

  	
   

  	
  SC

  
	
  GPT
  Properties Trust

  	
   

  	
  One
  Memphis Place, 200 Jefferson Avenue

  	
   

  	
  Memphis

  	
   

  	
  TN

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  701
  Clay Street

  	
   

  	
  Waco

  	
   

  	
  TX

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5600
  Columbia Pike

  	
   

  	
  Falls
  Church

  	
   

  	
  VA

  
	
  GPT
  Properties Trust

  	
   

  	
  65
  Bowdoin Street

  	
   

  	
  South
  Burlington

  	
   

  	
  VT

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2420
  Stevens Circle

  	
   

  	
  Richland

  	
   

  	
  WA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  2430
  Stevens Circle

  	
   

  	
  Richland

  	
   

  	
  WA

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  882
  TJ Jackson Drive

  	
   

  	
  Falling
  Waters

  	
   

  	
  WV

  
	
  Government
  Properties Income Trust LLC

  	
   

  	
  5353
  Yellowstone Road

  	
   

  	
  Cheyenne

  	
   

  	
  WY

  



 


Part II
(Unencumbered Mortgage Notes)


 


None.


 
















 


Loan No. 1001287


 


EXHIBIT A


 


FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption Agreement (the “Assignment and Assumption”) is dated
as of the Effective Date set forth below and is entered into by and between
[the][each](1) Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each](2) Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees](3) hereunder are several
and not joint.](4)  Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified below (as
amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by [the][each] Assignee. 
The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.


 


For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the
respective Assignees], and [the][each] Assignee hereby irrevocably purchases
and assumes from [the Assignor][the respective Assignors], subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of [the Assignor’s][the respective Assignors’] rights and
obligations in [its capacity as a Lender][their respective capacities as
Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any guarantees included in such
facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the
Assignor (in its capacity as a Lender)][the respective Assignors (in their
respective capacities as Lenders)] against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above
(the rights and obligations sold and assigned by [the][any] Assignor to
[the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any]
Assignor.


 






(1)           For bracketed
language here and elsewhere in this form relating to the Assignor(s), if the
assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors,
choose the second bracketed language.


 


(2)           For bracketed
language here and elsewhere in this form relating to the Assignee(s), if the
assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees,
choose the second bracketed language.


 


(3)           Select as
appropriate.


 


(4)           Include
bracketed language if there are either multiple Assignors or multiple
Assignees.


 


A-1

















 


	
  1.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [for each Assignee,
  indicate [Affiliate][Approved Fund] of [identify Lender]

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):

  	
  Government
  Properties Income Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  Wells
  Fargo Bank, National Association, as the administrative
  agent under the Credit Agreement

  
	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  The $500,000,000.00 Credit
  Agreement dated as of October 28, 2010 among Government Properties Income Trust, the Lenders parties thereto, Wells Fargo Bank, National Association, as
  Administrative Agent, and the other agents parties thereto.

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest[s]:

  	
   

  
					



 


	
  Assignor[s](5)

  	
   

  	
  Assignee[s](6)

  	
   

  	
  Facility

  Assigned(7)

  	
   

  	
  Aggregate

  Amount of

  Commitment/

  Loans for all

  Lenders(8)

  	
   

  	
  Amount of

  Commitment/

  Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/

  Loans(9)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


	
  [7.

  	
  Trade
  Date:

  	
                                 ](10)

  



 


[Page break]


 






(5)           List each
Assignor, as appropriate.


 


(6)           List each
Assignee, as appropriate.


 


(7)           Fill in the
appropriate terminology for the types of facilities under the Credit Agreement
that are being assigned under this Assignment (e.g. “Revolving Credit
Commitment” etc.)


 


(8)           Amount to be
adjusted by the counterparties to take into account any payments or prepayments
made between the Trade Date and the Effective Date.


 


(9)           Set forth, to
at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 


(10)         To be completed
if the Assignor(s) and the Assignee(s) intend that the minimum
assignment amount is to be determined as of the Trade Date.


 


A-2

















 


Effective Date:  
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
   

  	
  ASSIGNOR[S](11)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASSIGNEE[S](12)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


[Page Break]






(11)         Add additional
signature blocks as needed.


 


(12)         Add additional
signature blocks as needed.


 


A-3

















 


[Consented
to and](13) Accepted:


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent


 


	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 


[Consented
to:](14)


 


GOVERNMENT PROPERTIES INCOME TRUST


 


	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 






(13)         To be added
only if the consent of the Administrative Agent is required by the terms of the
Credit Agreement.


 


(14)         Include
signature of the Borrower only if required under Section 12.6.(b) of
the Credit Agreement.


 


A-4

















 


ANNEX 1


 


[                                    ](15)


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


1.1  Assignor[s].  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.


 


1.2.  Assignee[s].  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an Eligible
Assignee as defined in the Credit Agreement (subject to such consents, if any,
as may be required under such definition), (iii) from and after the
Effective Date specified for this Assignment and Assumption, it shall be bound
by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of
a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by the Assigned Interest and either it,
or the person exercising discretion in making its decision to acquire the
Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the financial statements
referenced in Section 6.1.(k) thereof or of the most recent financial
statements delivered pursuant to Section 8.1 or 8.2. thereof, as
applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
and (vii) if it is a Foreign Lender, attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by [the][such]
Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, [the][any] Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will


 






(15)         Describe Credit
Agreement at option of Administrative Agent.


 


A-5

















 


perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date
specified for this Assignment and Assumption. 
The Assignor[s] and the Assignee[s] shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to such
Effective Date or with respect to the making of this assignment directly
between themselves.


 


3.  General Provisions.  This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.


 


A-6
















 


EXHIBIT B


 


FORM OF GUARANTY


 


THIS
GUARANTY dated as of
                
    , 201  executed and delivered by each of the
undersigned and the other Persons from time to time party hereto pursuant to
the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a “Guarantor”
and collectively, the “Guarantors”) in favor of WELLS FARGO BANK, NATIONAL
ASSOCIATION, in its capacity as Administrative Agent (the “Administrative Agent”)
for the Lenders under that certain Credit Agreement dated as of October 28,
2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among Government
Properties Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), the Administrative Agent, and the
other parties thereto, for its benefit and the benefit of the Lenders, and the
Issuing Bank (the Administrative Agent, the Lenders, the Swingline Lender, and
the Issuing Bank, each individually a “Guarantied Party” and collectively, the “Guarantied
Parties”).


 


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


 


WHEREAS,
each Guarantor is owned or controlled by the Borrower, or is otherwise an
Affiliate of the Borrower;


 


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


 


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


 


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


 


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


 


Section 1.  Guaranty.  Each Guarantor hereby absolutely, irrevocably
and unconditionally guaranties the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all of
the following (collectively referred to as the “Guarantied Obligations”): (a) all
indebtedness and obligations owing by the Borrower or any other Loan Party to
any Lender or the Administrative Agent under or in connection with the Credit
Agreement and any other Loan Document to which the Borrower or such other Loan
Party is a party, including without limitation, the repayment of all principal
of the Revolving Loans and Swingline Loans, and the Reimbursement Obligations,
and the payment of all interest, fees, charges, reasonable attorneys’ fees and
other amounts


 


B-1

















 


payable
to any Lender, the Issuing Bank or the Administrative Agent thereunder or in
connection therewith; (b) any and all extensions, renewals, modifications,
amendments or substitutions of the foregoing; (c) all expenses, including,
without limitation, reasonable attorneys’ fees and disbursements, that are
incurred by the Administrative Agent or any other Guarantied Party in the
enforcement of any of the foregoing or any obligation of such Guarantor
hereunder and (d) all other Obligations.


 


Section 2.  Guaranty of Payment and Not of Collection.  This Guaranty is a guaranty of payment, and
not of collection, and a debt of each Guarantor for its own account.  Accordingly, the Guarantied Parties shall not
be obligated or required before enforcing this Guaranty against any Guarantor: (a) to
pursue any right or remedy the Guarantied Parties may have against the
Borrower, any other Loan Party or any other Person or commence any suit or
other proceeding against the Borrower, any other Loan Party or any other Person
in any court or other tribunal; (b) to make any claim in a liquidation or
bankruptcy of the Borrower, any other Loan Party or any other Person; or (c) to
make demand of the Borrower, any other Loan Party or any other Person or to
enforce or seek to enforce or realize upon any collateral security held by the
Guarantied Parties which may secure any of the Guarantied Obligations.


 


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


 


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


 


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


 


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


 


(d)           any settlement
or compromise of any of the Guarantied Obligations, any security therefor, or
any liability of any other party with respect to the Guarantied Obligations, or
any subordination of the payment of the Guarantied Obligations to the payment
of any other liability of the Borrower or any other Loan Party;


 


B-2

















 


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


 


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


 


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


 


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


 


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


 


(j)            any defense,
set off, claim or counterclaim (other than indefeasible payment and performance
in full) which may at any time be available to or be asserted by the Borrower,
any other Loan party or any other Person against the Administrative Agent or
any Lender;


 


(k)           any change in
corporate existence, structure or ownership of the Borrower or any other Loan
Party;


 


(l)            any statement,
representation or warranty made or deemed made by or on behalf of the Borrower,
any Guarantor or any other Loan Party under any Loan Document, or any amendment
hereto or thereto, proves to have been incorrect or misleading in any respect;
or


 


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


 


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


 


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


 


B-3

















 


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


 


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


 


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


 


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


 


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


 


Section 11.
Payments Free and Clear.  All sums
payable by each Guarantor hereunder, whether of principal, interest, fees,
expenses, premiums or otherwise, shall be paid in full, without set-off or
counterclaim or any deduction or withholding whatsoever (including any Taxes),
and if such Guarantor is required by Applicable Law or by any Governmental
Authority to make any such deduction or withholding such Guarantor shall pay to
the Administrative Agent and the Lenders such additional


 


B-4

















 


amount
as will result in the receipt by the Administrative Agent and the Lenders of
the full amount payable hereunder had such deduction or withholding not
occurred or been required.


 


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


 


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


 


Section 14.  Avoidance Provisions.  It is the intent of each Guarantor, the
Administrative Agent and the other Guarantied Parties that in any Proceeding,
such Guarantor’s maximum obligation hereunder shall equal, but not exceed, the
maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Guarantied Parties) to be avoidable or unenforceable against such Guarantor in
such Proceeding as a result of Applicable Law, including without limitation, (a) Section 548
of the Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”) and (b) any
state fraudulent transfer or fraudulent conveyance act or statute applied in
such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code
or otherwise.  The Applicable Laws under
which the possible avoidance or unenforceability of the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Guarantied Parties) shall be determined in any such Proceeding are referred to
as the “Avoidance Provisions”. 
Accordingly, to the extent that the obligations of any Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Guarantied Parties), to be subject
to avoidance under the Avoidance Provisions. 
This Section is intended solely to preserve the rights of the
Administrative Agent and the other Guarantied Parties hereunder to the maximum
extent that would not cause the obligations of any Guarantor hereunder to be
subject to avoidance under the Avoidance Provisions, and no Guarantor or any
other Person shall have any right or claim under this Section as against
the Guarantied Parties that would not otherwise be available to such Person
under the Avoidance Provisions.


 


B-5

















 


Section 15.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower
and the other Loan Parties, and of all other circumstances bearing upon the
risk of nonpayment of any of the Guarantied Obligations and the nature, scope
and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that neither  the Administrative
Agent nor any other Guarantied Party shall have any duty whatsoever to advise
any Guarantor of information regarding such circumstances or risks.


 


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


 


SECTION 17.  WAIVER OF JURY TRIAL.


 


(a)           EACH GUARANTOR,
AND EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES BY ACCEPTING
THE BENEFITS HEREOF, ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN SUCH
GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE OTHER GUARANTIED PARTES WOULD
BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN
DELAY AND EXPENSE TO THE PARTIES. 
ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE
GUARANTORS, THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES HEREBY
WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR
NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST ANY PARTY HERETO ARISING OUT OF THIS GUARANTY.


 


(b)           EACH GUARANTOR,
AND EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES BY
ACCEPTING THE BENEFITS HEREOF, HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT
LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN NEW
YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG THE GUARANTORS, THE ADMINISTRATIVE AGENT OR ANY OF
THE OTHER GUARANTIED PARTIES, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
GUARANTY.  EACH GUARANTOR AND EACH OF THE
GUARANTIED PARTIES EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS.  EACH PARTY FURTHER WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL
NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE
AGENT OR ANY OTHER GUARANTIED PARTY OR THE ENFORCEMENT BY THE ADMINISTRATIVE
AGENT OR ANY OTHER GUARANTIED PARTY OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.


 


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


 


B-6

















 


DOCUMENTS,
THE TERMINATION, CANCELLATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE
TERMINATION OF THIS GUARANTY.


 


Section 18.  Loan Accounts.  The Administrative Agent and each Lender and
the Swingline Lender may maintain books and accounts setting forth the amounts
of principal, interest and other sums paid and payable with respect to the
Guarantied Obligations arising under or in connection with the Credit
Agreement, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of any of such Guarantied Obligations or otherwise,
the entries in such books and accounts shall constitute prima facie evidence of
the amounts and other matters set forth therein.  The failure of the Administrative Agent, the
Swingline Lender or any Lender to maintain such books and accounts shall not in
any way relieve or discharge any Guarantor of any of its obligations hereunder.


 


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


 


Section 20.
 Termination.  This Guaranty shall remain in full force and
effect with respect to each Guarantor until indefeasible payment in full of the
Guarantied Obligations and the other Obligations and the termination or
cancellation of the Credit Agreement and all Specified Derivatives Contracts in
accordance with their respective terms and the termination, cancellation or
expiration of all Letters of Credit.


 


Section 21.  Successors and Assigns.  Each reference herein to the Administrative
Agent or any other Guarantied Party shall be deemed to include such Person’s
respective successors and assigns (including, but not limited to, any holder of
the Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to each Guarantor shall be deemed to
include such Guarantor’s successors and assigns, upon whom this Guaranty also
shall be binding.  The Guarantied Parties
may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Guarantied Obligation, or grant or sell
participations in any Guarantied Obligations, to any Person without the consent
of, or notice to, any Guarantor and without releasing, discharging or modifying
any Guarantor’s obligations hereunder. 
Each Guarantor hereby consents to the delivery by the Administrative
Agent or any other Guarantied Party to any Assignee or Participant (or any
prospective Assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. 
No Guarantor may assign or transfer its rights or obligations hereunder
to any Person without the prior written consent of all Lenders and any such
assignment or other transfer to which all of the Lenders have not so consented
shall be null and void.


 


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


 


Section 23.  Amendments.  This Guaranty may not be amended except in
writing signed by the Administrative Agent and each Guarantor, subject to Section 12.7.
of the Credit Agreement.


 


B-7

















 


Section 24.  Payments.  All payments to be made by any Guarantor
pursuant to this Guaranty shall be made in Dollars, in immediately available
funds to the Administrative Agent at its Principal Office, not later than 12:00 p.m.
Eastern time, on the date one Business Day after demand therefor.


 


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


 


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


 


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


 


Section 28.  Trustees, Etc. Not Liable.


 


IN
THE CASE OF ANY GUARANTOR THAT IS A TRUST, NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF SUCH GUARANTOR SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH
GUARANTOR.  ALL PERSONS DEALING WITH SUCH
GUARANTOR, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH GUARANTOR FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION OWING BY SUCH
GUARANTOR HEREUNDER. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT ANY
OBLIGATIONS OF ANY LOAN PARTY.


 


Section 29.  Limitation of Liability.    Neither the
Administrative Agent nor any other Guarantied Party, nor any affiliate,
officer, director, employee, attorney, or agent of the Administrative Agent or
any other Guarantied Party, shall have any liability with respect to, and each
Guarantor hereby waives, releases, and agrees not to sue any of them upon, any
claim for any special, indirect, incidental, or consequential damages suffered or
incurred by a Guarantor in connection with, arising out of, or in any way
related to, this Guaranty or any of the other Loan Documents, or any of the
transactions contemplated by this Guaranty, the Credit Agreement or any of the
other Loan Documents.  Each Guarantor
hereby waives, releases, and agrees not to sue the Administrative Agent or any
other Guarantied Party or any of the Administrative Agent’s or any other
Guarantied Party’s affiliates, officers, directors, employees, attorneys, or
agents for punitive damages in respect of any claim in connection with, arising
out of, or in any way related to, this Guaranty, the Credit Agreement or any of
the other Loan Documents, or any of the transactions contemplated by thereby.


 


Section 30.  Electronic Delivery of Certain Information.  Each Guarantor acknowledges and agrees that
information regarding the Guarantor may be delivered electronically pursuant to
Section 8.5. of the Credit Agreement.


 


Section 31.  Definitions. (a) For the purposes
of this Guaranty:


 


B-8

















 


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


 


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


 


[Signatures on Following Page]


 


B-9

















 


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


 


	
   

  	
   

  	
  [GUARANTORS]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices for all Guarantors:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o
  Government Properties Income Trust

  
	
   

  	
   

  	
  400
  Centre Street

  
	
   

  	
   

  	
  Newton,
  Massachusetts 02458

  
	
   

  	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
  Telecopier:

  	
  (617)
  332-2261

  
	
   

  	
   

  	
  Telephone:

  	
  (617)
  332-3990

  
						



 


B-10
















 


ANNEX I


 


FORM OF ACCESSION
AGREEMENT


 


THIS
ACCESSION AGREEMENT dated as of
                        ,
        , executed and delivered by
                                            ,
a                           
(the “New Guarantor”) in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, in
its capacity as Administrative Agent (the “Administrative Agent”) for the
Lenders under that certain Credit Agreement dated as of October 28, 2010
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), by and among Government
Properties Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), Wells Fargo Bank, National
Association, as Administrative Agent (the “Administrative Agent”), and the
other parties thereto, for its benefit and the benefit of the Lenders, the
Swingline Lender, and  the Issuing
Bank (the Administrative Agent, the Lenders, the Issuing Bank, and the
Specified Derivatives Providers, each individually a “Guarantied Party” and
collectively, the “Guarantied Parties”).


 


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


 


WHEREAS,
New Guarantor is owned or controlled by the Borrower, or is otherwise an
Affiliate of the Borrower;


 


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


 


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


 


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


 


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


 


Section 1.  Accession to Guaranty.  The New Guarantor hereby agrees that it is a “Guarantor”
under the Guaranty dated as of October 28, 2010 (as amended, restated or
otherwise modified from time to time, the “Guaranty”), made by the Guarantors
party thereto in favor of the Administrative Agent, for its benefit and the
benefit of the other Guarantied Parties, and assumes all obligations of a “Guarantor”
thereunder, all as if the New Guarantor had been an original signatory to the
Guaranty.  Without limiting the
generality of the foregoing, the New Guarantor hereby:


 


B-11

















 


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


 


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


 


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


 


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


 


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


 


[Signatures on Next Page]


 


B-12

















 


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


 


	
   

  	
   

  	
  [NEW
  GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (CORPORATE SEAL)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o
  Government Properties Income Trust

  
	
   

  	
   

  	
  400
  Centre Street

  
	
   

  	
   

  	
  Newton,
  Massachusetts 02458

  
	
   

  	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
  Telecopier:

  	
  (617)
  332-2261

  
	
   

  	
   

  	
  Telephone:

  	
  (617)
  332-3990

  
						



 


 


	
  Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WELLS FARGO BANK, NATIONAL

  	
   

  	
   

  
	
  ASSOCIATION, as
  Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 


B-13

















 


EXHIBIT C


 


FORM OF NOTICE OF
BORROWING


 


                     ,
20    


 


Wells Fargo Bank, National
Association


NorthStar
East Building


608
2nd Avenue South


Minneapolis,
MN 55402


Attn: 
David DeAngelis


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Credit Agreement dated as of October 28, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Government Properties
Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), Wells Fargo Bank, National
Association, as Administrative Agent (the “Administrative Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


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


 


2.                                      The Borrower
requests that such Revolving Loans be made available to the Borrower on
                        ,
20    .


 


3.                                      The Borrower
hereby requests that such Revolving Loans be of the following Type:


 


[Check one box only]


 


o            Base Rate Loan


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


 


[Check one box only]


 


o        7days


o        one month


o        three months


o        six months


 


The
Borrower hereby certifies to the Administrative Agent and the Lenders that as
of the date hereof, as of the date of the making of the requested Revolving
Loans, and after making such Revolving Loans, (a) no Default or Event of
Default exists or would exist, and none of the limits specified in Section 2.14.
of the Credit Agreement would be violated; and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and
correct with the same force and effect as if made on and as of such date except
to the extent that such representations and warranties expressly relate solely
to an earlier date (in which case such representations and warranties shall
have been true and accurate on and as of


 


C-1

















 


such
earlier date) and except for changes in factual circumstances specifically and
expressly permitted under the Loan Documents. 
In addition, the Borrower certifies to the Administrative Agent and the
Lenders that all conditions to the making of the requested Revolving Loans
contained in Article V. of the Credit Agreement will have been satisfied
at the time such Revolving Loans are made.


 


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


 


	
   

  	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


C-2
















 


EXHIBIT D


 


FORM OF NOTICE OF
CONTINUATION


 


                  ,
20   


 


Wells Fargo Bank, National
Association


NorthStar
East Building


608
2nd Avenue South


Minneapolis,
MN 55402


Attn:  David DeAngelis(16)


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Credit Agreement dated as of October 28, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Government Properties
Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), Wells Fargo Bank, National
Association, as Administrative Agent (the “Administrative Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


Pursuant
to Section 2.8. of the Credit Agreement, the Borrower hereby requests a
Continuation of Loans under the Credit Agreement, and in that connection sets
forth below the information relating to such Continuation as required by such Section of
the Credit Agreement:


 


1.                                       The requested
date of such Continuation is
                        ,
20    .


 


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


 


3.                                       The current
Interest Period of the Loans subject to such Continuation ends on
                              ,
20    .


 


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


 


[Check one box only]


o                  7 days


o                   one month


o                   three months


o                   six months


 


[Continued on next page]


 






(16) 
Wells Fargo:  Please confirm that this
the person and address to whom notices should be sent.


 


D-1

















 


The
Borrower hereby certifies to the Administrative Agent and the Lenders that as
of the date hereof, as of the proposed date of the requested Continuation, and
after giving effect to such Continuation, no Default or Event of Default exists
or will exist, and (b) the representations and warranties made or deemed
made by the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party are and shall be true and correct with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Loan Documents.


 


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


 


 


 


	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


D-2

















 


EXHIBIT E


 


FORM OF NOTICE OF
CONVERSION


 


                    ,
20  


 


Wells Fargo Bank, National
Association


NorthStar
East Building


608
2nd Avenue South


Minneapolis,
MN 55402


Attn: 
David DeAngelis


 


Ladies
and Gentlemen:


 


Reference
is made to the Credit Agreement dated as of October 28, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Government Properties
Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), Wells Fargo Bank, National
Association, as Administrative Agent (the “Administrative Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


Pursuant
to Section 2.9. of the Credit Agreement, the Borrower hereby requests a
Conversion of Loans of one Type into Loans of another Type under the Credit
Agreement, and in that connection sets forth below the information relating to
such Conversion as required by such Section of the Credit Agreement:


 


1.                                       The requested
date of such Conversion is
                            ,
20    .


 


2.                                       The Type of Loans
to be Converted pursuant hereto is currently:


 


[Check one box only]


 


o                  Base Rate Loan


o                  LIBOR Loan


 


3.                                       The aggregate
principal amount of the Loans subject to the requested Conversion is
$                                      
and the portion of such principal amount subject to such Conversion is
$                                    .


 


E-1

















 


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


 


[Check one box only]


 


o            Base Rate Loan


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


 


[Check one box only]


o            7 days


o            one month


o            three months


o            six months


 


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


 


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


 


	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


E-2

















 


EXHIBIT F


 


FORM OF NOTICE OF
SWINGLINE BORROWING


 


                    ,
20  


 


Wells Fargo Bank, National
Association


NorthStar
East Building


608
2nd Avenue South


Minneapolis,
MN 55402


Attn: 
David DeAngelis


 


Ladies
and Gentlemen:


 


Reference
is made to the Credit Agreement dated as of October 28, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Government Properties
Income Trust, a Maryland real estate investment trust (the “Borrower”),
the financial institutions party thereto and their assignees under
Section 12.6. thereof (the “Lenders”), Wells Fargo Bank, National Association,
as Administrative Agent (the “Administrative Agent”), and the other parties
thereto.  Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.


 


1.                                       Pursuant to
Section 2.3.(b) of the Credit Agreement, the Borrower hereby requests
that the Swingline Lender make a Swingline Loan to the Borrower in an amount
equal to
$                                    .


 


2.                                       The Borrower
requests that such Swingline Loan be made available to the Borrower on
                       ,
20      .


 


3.                                       The Borrower
requests that the proceeds of such Swingline Loan be made available to the
Borrower by
                                                                      .


 


The
Borrower hereby certifies to the Administrative Agent, the Swingline Lender and
the Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no
Default or Event of Default exists or would exist, and none of the limits
specified in Section 2.14. of the Credit Agreement would be violated; and
(b) the representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of them is a party
are and shall be true and correct with the same force and effect as if made on
and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Loan Documents.  In addition, the Borrower certifies to the
Administrative Agent and the Lenders that all conditions to the making of the
requested Swingline Loan contained in Article V. of the Credit Agreement
will have been satisfied at the time such Swingline Loan is made.


 


[Continued on next page]


 


F-1

















 


If
notice of the requested borrowing of this Swingline Loan was previously given
by telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.3.(b) of the Credit Agreement.


 


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


 


	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


F-2
















 


EXHIBIT G


 


FORM OF REVOLVING NOTE


 


	
  $   

  	
   

  	
                ,
  2010

  



 


FOR VALUE RECEIVED, the undersigned, GOVERNMENT
PROPERTIES INCOME TRUST, a Maryland real estate investment trust (the “Borrower”)
hereby unconditionally promises to pay to the order of
                                               
(the “Lender”), in care of Wells Fargo Bank, National Association, as
Administrative Agent (the “Administrative Agent”), to Wells Fargo Bank,
National Association, NorthStar East Building, 608 2nd Avenue South, Minneapolis,
Minnesota 55402, or at such other address as may be specified by the
Administrative Agent to the Borrower, the principal sum of
                                    
AND       /100 DOLLARS
($                       ),
or such lesser amount as may be the then outstanding and unpaid balance of all
Revolving Loans made by the Lender to the Borrower pursuant to, and in
accordance with the terms of, the Credit Agreement.


 


The
Borrower further agrees to pay interest at said office, in like money, on the unpaid
principal amount owing hereunder from time to time on the dates and at the
rates and at the times specified in the Credit Agreement.


 


This
Revolving Note is one of the “Revolving Notes” referred to in the Credit
Agreement dated as of October 28, 2010 (as amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”), by and among
the Borrower, the financial institutions party thereto and their assignees
under Section 12.6. thereof, the Administrative Agent, and the other
parties thereto, and is subject to, and entitled to, all provisions and
benefits thereof.  Capitalized terms used
herein and not defined herein shall have the respective meanings given to such
terms in the Credit Agreement.  The
Credit Agreement, among other things, (a) provides for the making of
Revolving Loans by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the Dollar amount first above
mentioned, (b) permits the prepayment of the Loans by the Borrower subject
to certain terms and conditions and (c) provides for the acceleration of
the Revolving Loans upon the occurrence of certain specified events.


 


The
Borrower hereby waives presentment, demand, protest and notice of any
kind.  No failure to exercise, and no
delay in exercising any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.


 


Time is of the essence for this Revolving Note.


 


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


 


G-1

















 


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


 


	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


G-2

















 


EXHIBIT H


 


FORM OF SWINGLINE NOTE


 


	
  $50,000,000

  	
   

  	
  October 28, 2010

  



 


FOR
VALUE RECEIVED, the undersigned, GOVERNMENT PROPERTIES INCOME TRUST, a Maryland
real estate investment trust (the “Borrower”), hereby promises to pay to the
order of WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Swingline Lender”) at its
address at NorthStar East Building, 608 2nd Avenue South, Minneapolis,
Minnesota 55402, or at such other address as may be specified by the Swingline
Lender to the Borrower, the principal sum of FIFTY MILLION AND NO/100 DOLLARS
($50,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Swingline Loans made by the Swingline Lender to the
Borrower under the Credit Agreement), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.


 


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


 


This
Note is the “Swingline Note” referred to in the Credit Agreement dated as of October 28,
2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among the Borrower, the financial
institutions party thereto and their assignees under Section 12.6.
thereof, the Administrative Agent, and the other parties thereto, and evidences
Swingline Loans made to the Borrower thereunder.  Terms used but not otherwise defined in this
Note have the respective meanings assigned to them in the Credit Agreement.


 


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


 


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


 


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


 


Time is of the essence for this Note.


 


H-1

















 


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


 


	
   

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


H-2

















 


SCHEDULE OF SWINGLINE LOANS


 


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


 


	
  Date of Loan

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Amount Paid

  or Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


H-3






 












 


EXHIBIT I


 


TRANSFER AUTHORIZER
DESIGNATION


(For Disbursement of Loan
Proceeds by Funds Transfer)


 


o  NEW  o  REPLACE PREVIOUS
DESIGNATION  o  ADD  o  CHANGE 
o  DELETE LINE NUMBER


 


The following representatives of Government Properties Income Trust, a
Maryland real estate investment trust (“Borrower”) are authorized to request
the disbursement of the proceeds of the Loans and initiate funds transfers for
Loan Number 1001287 assigned to the unsecured  revolving
credit facility evidenced by the Credit Agreement dated October 28, 2010
among the Borrower, each of the financial institutions initially a signatory
thereto together with their assignees under Section 12.6. thereof (the “Lenders”),
Wells Fargo Bank, National Association, as the Administrative Agent for the
Lenders (the “Administrative Agent”), and the other parties thereto.  The Administrative Agent is authorized to
rely on this Transfer Authorizer Designation until it has received a new
Transfer Authorizer Designation signed by Borrower, even in the event that any
or all of the foregoing information may have changed.


 


	
   

  	
   

  	
  Name

  	
   

  	
  Title

  	
   

  	
  Maximum

  Wire

  Amount*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Continued on next page]


 


I-1

















 


Beneficiary Bank and Account Holder Information


 


1.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
   

  	
  Receiving
  Bank Routing (ABA) Number

  
	
   

  	
   

  	
   

  
	
  Maximum
  Transfer Amount:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Further Credit Information/Instructions:

  	
   

  	
   

  



 


2.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
   

  	
  Receiving
  Bank Routing (ABA)

  
	
   

  	
   

  	
  Number

  
	
  Maximum
  Transfer Amount:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Further
  Credit Information/Instructions:

  	
   

  	
   

  



 


3.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
   

  	
  Receiving
  Bank Routing (ABA) Number

  
	
   

  	
   

  	
   

  
	
  Maximum
  Transfer Amount:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Further
  Credit Information/Instructions:

  	
   

  	
   

  



 






* Maximum Wire Amount may not exceed the Loan
Amount.


 


I-2

















 


Date:
                      ,
20


 


“BORROWER”


 


GOVERNMENT PROPERTIES INCOME TRUST,


a Maryland real estate investment trust


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


I-3

















 


EXHIBIT J


 


FORM OF OPINION OF COUNSEL


 


October 28, 2010


 


Wells
Fargo Bank, National Association,


as
Administrative Agent


Wells
Fargo Bank, National Association


101
Federal Street, 28th Floor


Boston,
Massachusetts  02110


 


The
Lenders party to the Credit Agreement


referred
to below


 


Ladies
and Gentlemen:


 


We
have acted as counsel to Government Properties Income Trust, a Maryland real
estate investment trust (the “Borrower”), in connection with the negotiation,
execution and delivery of that certain Credit Agreement dated as of October 28,
2010 (the “Credit Agreement”), by and among the Borrower, each of the financial
institutions initially a signatory thereto together with their assignees
pursuant to Section 12.6. and Wells Fargo Bank, National Association, as
Administrative Agent.  We have also acted
as counsel to [List Names of Guarantors] (each a “Guarantor” and collectively,
the “Guarantors”, and together with the Borrower collectively referred to as
the “Loan Parties”) in connection with the Guaranty dated as of October 28,
2010, made by each Guarantor in favor of the Administrative Agent and the
Lenders.  All capitalized terms used but
not defined herein shall have the meanings set forth in the Credit Agreement.


 


In
these capacities, we have reviewed the following:


 


(a)                                  the Credit
Agreement;


 


(b)                                 Revolving
Notes;


 


(c)                                  Swingline Note;


 


(d)                                 the Guaranty;
and


 


(e)                                  [Others].


 


The
documents and instruments set forth in items (a) through (  ) above
are referred to herein as the “Loan Documents”.


 


In
addition to the foregoing, we have reviewed the articles of incorporation and
by-laws, certificates of limited partnership and limited partnership
agreements, deeds of trust or other similar organizational documents, as
applicable, of each Loan Party and certain resolutions of the board of
directors, as applicable, of each Loan Party (collectively, the “Organizational
Documents”) and have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, 


 


J-1

















 


corporate
records, and other instruments, and made such other investigations of law and
fact, as we have deemed necessary or advisable for the purposes of rendering
this opinion.  In our examination of
documents, we assumed the genuineness of all signatures on documents presented
to us as originals (other than the signatures of officers of the Loan Parties)
and the conformity to originals of documents presented to us as conformed or
reproduced copies.


 


Based
upon the foregoing, and subject to all of the qualifications and assumptions
set forth herein, we are of the opinion that:


 


1.                                       The Borrower (i) is
duly organized as a corporation and is validly existing and in good standing
under the laws of the State of Maryland and (ii) has the power to execute,
deliver and perform the Loan Documents to which it is a party, to own and use
its assets, and to conduct its business as presently conducted and as proposed to
be conducted immediately following the consummation of the transactions
contemplated by the Credit Agreement. 
The Borrower is qualified to transact business as a foreign corporation
in [list all States in which the character of its properties or the nature of
its business requires such qualification or authorization and where the failure
to be so qualified could reasonably be expected to have a Material Adverse
Effect].


 


2.                                       Each Guarantor (i) is
duly organized as a [corporation][limited liability company] and is validly
existing and in good standing under the laws of its jurisdiction of
[organization][formation] and (ii) has the power to execute, deliver and
perform the Loan Documents to which it is a party, to own and use its assets,
and to conduct its business as presently conducted and as proposed to be
conducted immediately following the consummation of the transactions
contemplated by the Credit Agreement. 
Each Guarantor is qualified to transact business as a foreign
corporation in [list all States in which the character of each Guarantor’s
properties or the nature of each Guarantor’s business requires such
qualification or authorization and where the failure to be so qualified could
reasonably be expected to have a Material Adverse Effect].


 


3.                                       Each Loan Party
has duly authorized the execution and delivery of the Loan Documents to which
it is a party and all performance by each Loan Party thereunder.  Each of the Loan Parties has duly executed
and delivered such Loan Documents.


 


4.                                       The execution
and delivery by each of the Loan Parties of the Loan Documents to which each is
a party do not, and if each of the Loan Parties were now to perform its
obligations under such Loan Documents, such performance would not, result in
any:


 


(a)                                  violation of
any Loan Party’s respective Organizational Documents, as applicable,;


 


(b)                                 violation of
any existing federal or state constitution, statute, regulation, rule, order,
or law to which any Loan Party or its respective assets are subject;


 


(c)                                  breach or
violation of or default under, any agreements, instruments, indentures or other
documents evidencing any indebtedness for money borrowed or any other material
agreement to which, to our knowledge, a Loan Party is bound or under which a
Loan Party or its respective assets is subject;


 


(d)                                 creation or
imposition of a contractual lien or security interest in, on or against the
assets of any Loan Party under any material written agreements to which, any
Loan Party is a party or by which any Loan Party or their respective assets are
bound; or


 


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(e)                                  violation of
any judicial or administrative decree, writ, judgment or order to which, to our
knowledge, any Loan Party or its respective assets are subject.


 


5.                                       The execution,
delivery and performance by each of the Loan Parties of each Loan Document to
which it is a party, and the consummation of the transactions thereunder, do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority of the
United States of America, the State of New York, the State of Maryland or the
States of [list all States in which the character of each Loan Parties’
properties or the nature of each Loan Parties’ business requires such
qualification or authorization and where the failure to be so qualified could
reasonably be expected to have a Material Adverse Effect].


 


6.                                       The Loan
Documents constitute the legal, valid and binding obligations of the Loan
Parties, enforceable against the respective Loan Parties in accordance with
their respective terms, except that the foregoing opinion is subject to:
(a) applicable bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws relating to or affecting the enforcement of
creditors’ rights generally and (b) the fact that equitable remedies or
relief (including, but not limited to, the remedy of specific performance) are
subject to the discretion of the court before which any such remedies or relief
may be sought.


 


7.                                       To our
knowledge, there are no judgments outstanding against any of the Loan Parties
or affecting any of their respective assets, nor is there any litigation or
other proceeding against any of the Loan Parties or its assets pending or
overtly threatened.


 


8.                                       None of the
Loan Parties is, or, after giving effect to any Loan will be, subject to
regulation under the Investment Company Act of 1940 or to any federal or state
statute or regulation limiting its ability to incur indebtedness for borrowed
money.


 


9.                                       Assuming that
Borrower applies the proceeds of the Loans and as provided in the Credit
Agreement, the transactions contemplated by the Loan Documents do not violate
the provisions of Regulations T, U or X of the Federal Reserve Board.


 


10.                                 The
consideration to be paid to the Lenders for the financial accommodations to be
provided to the Loan Parties pursuant to the Credit Agreement does not violate
any law of the State of New York relating to interest and usury.


 


[Customary Qualifications/Assumptions/Limitations]


 


	
   

  	
  Very
  truly yours,

  



 


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EXHIBIT K


 


FORM OF COMPLIANCE
CERTIFICATE


 


Reference
is made to the Credit Agreement dated as of October 28, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Government Properties Income Trust, a Maryland real
estate investment trust (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.6. thereof (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative
Agent”), and the other parties thereto. 
Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given to them in the Credit Agreement.


 


Pursuant
to Section 8.3 of the Credit Agreement, the undersigned hereby certifies
to the Administrative Agent and the Lenders that:


 


1.                                       (a) The
undersigned has reviewed the terms of the Credit Agreement and has made a
review of the transactions, financial condition and other affairs of the
Borrower and its Subsidiaries as of, and during the relevant accounting period
ending on,
                              ,
20     and (b) such review has not disclosed the
existence during such accounting period, and the undersigned does not have
knowledge of the existence, as of the date hereof, of any condition or event
constituting a Default or Event of Default [except as set forth on
Attachment A hereto, which accurately describes the nature of the conditions(s) or
event(s) that constitute (a) Default(s) or (an) Event(s) of
Default and the actions which the Borrower (is taking)(is planning to take)
with respect to such condition(s) or event(s)] [;thus, to the best of the
undersigned’s knowledge, no Default or Event of Default exists](17).


 


2.                                       Schedule 1
attached hereto accurately and completely sets forth the calculations required
to establish whether there has been compliance with Section 9.1. of the
Credit Agreement.


 


3.                                       The
representations and warranties of the Borrower and the other Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct in all material respects, except to the extent such representations or
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Credit Agreement or the other Loan Documents.


 


IN
WITNESS WHEREOF, the undersigned has signed this Compliance Certificate on and
as of
                      ,
20    .


 


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(17)  Choose the one of the two preceding bracketed options that
is applicable and insert to complete.


 


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Schedule 1


 


[calculations to be attached]


 


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