exv10w1






Exhibit 10.1




Loan Number: 1001642-0









EXECUTION COPY

 





CREDIT AGREEMENT




Dated as of November 3, 2009



by and among



NATIONAL RETAIL PROPERTIES, INC.,

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,



Each of

PNC BANK, NATIONAL ASSOCIATION

and

U.S. BANK NATIONAL ASSOCIATION,

as a Documentation Agent,



and



Each of

WELLS FARGO SECURITIES, LLC

and

BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint

Bookrunners



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Article I. Definitions	 	 	1	 
	 	 	 
	 	 	 	 
	 	 	Section 1.1.  Definitions

	 	 	1	 
	 	 	Section 1.2.  General; References to Pacific Time

	 	 	22	 
	 	 	 
	 	 	 	 
	Article II. Credit Facility	 	 	22	 
	 	 	 
	 	 	 	 
	 	 	Section 2.1.  Revolving Loans

	 	 	22	 
	 	 	Section 2.2.  Swingline Loans

	 	 	23	 
	 	 	Section 2.3.  Letters of Credit

	 	 	25	 
	 	 	Section 2.4.  Rates and Payment of Interest on Loans

	 	 	29	 
	 	 	Section 2.5.  Number of Interest Periods

	 	 	30	 
	 	 	Section 2.6.  Repayment of Loans

	 	 	30	 
	 	 	Section 2.7.  Prepayments

	 	 	30	 
	 	 	Section 2.8.  Continuation

	 	 	30	 
	 	 	Section 2.9.  Conversion

	 	 	31	 
	 	 	Section 2.10.  Notes

	 	 	31	 
	 	 	Section 2.11.  Extension of Termination Date

	 	 	32	 
	 	 	Section 2.12.  Expiration or Maturity Date of Letters of Credit Past
Termination Date

	 	 	32	 
	 	 	Section 2.13.  Voluntary Reductions of the Commitment

	 	 	33	 
	 	 	Section 2.14.  Increase of Commitments

	 	 	33	 
	 	 	Section 2.15.  Amount Limitations

	 	 	34	 
	 	 	Section 2.16.  Funds Transfer Disbursements

	 	 	34	 
	 	 	 
	 	 	 	 
	Article III. Payments, Fees and Other General Provisions	 	 	35	 
	 	 	 
	 	 	 	 
	 	 	Section 3.1.  Payments

	 	 	35	 
	 	 	Section 3.2.  Pro Rata Treatment

	 	 	36	 
	 	 	Section 3.3.  Sharing of Payments, Etc.

	 	 	36	 
	 	 	Section 3.4.  Several Obligations

	 	 	37	 
	 	 	Section 3.5.  Minimum Amounts

	 	 	37	 
	 	 	Section 3.6.  Fees

	 	 	37	 
	 	 	Section 3.7.  Computations

	 	 	38	 
	 	 	Section 3.8.  Usury

	 	 	38	 
	 	 	Section 3.9.  Statements of Account

	 	 	39	 
	 	 	Section 3.10.  Defaulting Lenders

	 	 	39	 
	 	 	Section 3.11.  Taxes; Foreign Lenders

	 	 	41	 
	 	 	 
	 	 	 	 
	Article IV. Yield
Protection, Etc.	 	 	43	 
	 	 	 
	 	 	 	 
	 	 	Section 4.1.  Additional Costs; Capital Adequacy

	 	 	43	 
	 	 	Section 4.2.  Suspension of LIBOR Loans

	 	 	44	 
	 	 	Section 4.3.  Illegality

	 	 	45	 
	 	 	Section 4.4.  Compensation

	 	 	45	 
	 	 	Section 4.5.  Affected Lenders

	 	 	46	 
	 	 	Section 4.6.  Treatment of Affected Loans

	 	 	46	 
	 	 	Section 4.7.  Change of Lending Office

	 	 	47	 
	 	 	Section 4.8.  Assumptions Concerning Funding of LIBOR Loans

	 	 	47	 
	 	 	 
	 	 	 	 
	Article V. Conditions Precedent	 	 	47	 
	 	 	 
	 	 	 	 
	 	 	Section 5.1.  Initial Conditions Precedent

	 	 	47	 
	 	 	Section 5.2.  Conditions Precedent to All Loans and Letters of Credit

	 	 	49	 






 









 






	 	 	 	 	 	 	 
	 	 	Section 5.3.  Conditions as Covenants

	 	 	50	 
	 	 	 
	 	 	 	 
	Article VI. Representations and Warranties	 	 	50	 
	 	 	 
	 	 	 	 
	 	 	Section 6.1.  Representations and Warranties

	 	 	50	 
	 	 	Section 6.2.  Survival of Representations and Warranties, Etc.

	 	 	56	 
	 	 	 
	 	 	 	 
	Article VII. Affirmative Covenants	 	 	57	 
	 	 	 
	 	 	 	 
	 	 	Section 7.1.  Preservation of Existence and Similar Matters

	 	 	57	 
	 	 	Section 7.2.  Compliance with Applicable Law

	 	 	57	 
	 	 	Section 7.3.  Maintenance of Property

	 	 	57	 
	 	 	Section 7.4.  Insurance

	 	 	57	 
	 	 	Section 7.5.  Payment of Taxes and Claims

	 	 	57	 
	 	 	Section 7.6.  Inspections

	 	 	58	 
	 	 	Section 7.7.  Use of Proceeds; Letters of Credit

	 	 	58	 
	 	 	Section 7.8.  Environmental Matters

	 	 	58	 
	 	 	Section 7.9.  Books and Records

	 	 	59	 
	 	 	Section 7.10.  Further Assurances

	 	 	59	 
	 	 	Section 7.11.  New Subsidiaries /Guarantors

	 	 	59	 
	 	 	Section 7.12.  REIT Status

	 	 	60	 
	 	 	Section 7.13.  Exchange Listing

	 	 	60	 
	 	 	 
	 	 	 	 
	Article VIII. Information	 	 	60	 
	 	 	 
	 	 	 	 
	 	 	Section 8.1.  Quarterly Financial Statements

	 	 	60	 
	 	 	Section 8.2.  Year-End Statements

	 	 	60	 
	 	 	Section 8.3.  Compliance Certificate; Additional Information

	 	 	60	 
	 	 	Section 8.4.  Other Information

	 	 	61	 
	 	 	Section 8.5.  Electronic Delivery of Certain Information

	 	 	63	 
	 	 	Section 8.6.  Public/Private Information

	 	 	64	 
	 	 	Section 8.7.  USA Patriot Act Notice; Compliance

	 	 	64	 
	 	 	 
	 	 	 	 
	Article IX. Negative Covenants	 	 	64	 
	 	 	 
	 	 	 	 
	 	 	Section 9.1.  Financial Covenants

	 	 	64	 
	 	 	Section 9.2.  Restricted Payments

	 	 	65	 
	 	 	Section 9.3.  Indebtedness

	 	 	65	 
	 	 	Section 9.4.  Certain Permitted Investments

	 	 	66	 
	 	 	Section 9.5.  Conduct of Business

	 	 	66	 
	 	 	Section 9.6.  Liens; Negative Pledges; Other Matters

	 	 	66	 
	 	 	Section 9.7.  Merger, Consolidation, Sales of Assets and
Other Arrangements

	 	 	67	 
	 	 	Section 9.8.  Fiscal Year

	 	 	67	 
	 	 	Section 9.9.   Modifications of Organizational Documents

	 	 	68	 
	 	 	Section 9.10.  Transactions with Affiliates

	 	 	68	 
	 	 	Section 9.11.  ERISA Exemptions

	 	 	68	 
	 	 	Section 9.12.  Environmental Matters

	 	 	68	 
	 	 	Section 9.13.  Derivatives Contracts

	 	 	68	 
	 	 	 
	 	 	 	 
	Article X. Default	 	 	69	 
	 	 	 
	 	 	 	 
	 	 	Section 10.1.   Events of Default

	 	 	69	 
	 	 	Section 10.2.  Remedies Upon Event of Default

	 	 	72	 
	 	 	Section 10.3.   Remedies Upon Default

	 	 	73	 
	 	 	Section 10.4.  Marshaling; Payments Set Aside

	 	 	73	 
	 	 	Section 10.5.  Allocation of Proceeds

	 	 	73	 






- ii -









 






	 	 	 	 	 	 	 
	 	 	Section 10.6.  Collateral Account

	 	 	74	 
	 	 	Section 10.7.  Performance by Administrative Agent

	 	 	75	 
	 	 	Section 10.8.  Rights Cumulative

	 	 	75	 
	 	 	 
	 	 	 	 
	Article XI. The Administrative Agent	 	 	75	 
	 	 	 
	 	 	 	 
	 	 	Section 11.1.  Appointment and Authorization

	 	 	75	 
	 	 	Section 11.2.  Administrative Agent’s Reliance

	 	 	76	 
	 	 	Section 11.3.   Notice of Events of Default

	 	 	77	 
	 	 	Section 11.4.  Wells Fargo as Lender

	 	 	77	 
	 	 	Section 11.5.  Approvals of Lenders

	 	 	77	 
	 	 	Section 11.6.  Lender Credit Decision, Etc.

	 	 	78	 
	 	 	Section 11.7.  Indemnification of Administrative Agent

	 	 	79	 
	 	 	Section 11.8.  Successor Administrative Agent

	 	 	79	 
	 	 	Section 11.9.  Titled Agents

	 	 	80	 
	 	 	 
	 	 	 	 
	Article XII. Miscellaneous	 	 	80	 
	 	 	 
	 	 	 	 
	 	 	Section 12.1.  Notices

	 	 	80	 
	 	 	Section 12.2.  Expenses

	 	 	81	 
	 	 	Section 12.3.  Stamp, Intangible and Recording Taxes

	 	 	82	 
	 	 	Section 12.4.  Setoff

	 	 	82	 
	 	 	Section 12.5.  Litigation; Jurisdiction; Other Matters; Waivers

	 	 	83	 
	 	 	Section 12.6.  Successors and Assigns

	 	 	83	 
	 	 	Section 12.7.  Amendments and Waivers

	 	 	85	 
	 	 	Section 12.8.  Nonliability of Administrative Agent and Lenders

	 	 	87	 
	 	 	Section 12.9.  Confidentiality

	 	 	87	 
	 	 	Section 12.10.  Indemnification

	 	 	88	 
	 	 	Section 12.11.  Termination; Survival

	 	 	90	 
	 	 	Section 12.12.  Severability of Provisions

	 	 	90	 
	 	 	Section 12.13.  GOVERNING LAW

	 	 	90	 
	 	 	Section 12.14.  Counterparts

	 	 	90	 
	 	 	Section 12.15.  Obligations with Respect to Loan Parties

	 	 	90	 
	 	 	Section 12.16.  Independence of Covenants

	 	 	90	 
	 	 	Section 12.17.  Limitation of Liability

	 	 	91	 
	 	 	Section 12.18.  Entire Agreement

	 	 	91	 
	 	 	Section 12.19.  Construction

	 	 	91	 
	 	 	Section 12.20.  Headings

	 	 	91	 






	 	 	 
	SCHEDULE I

	 	Commitments
	SCHEDULE 1.1(A)

	 	Existing Letters of Credit
	SCHEDULE 1.1.(B)

	 	List of Loan Parties
	SCHEDULE 6.1.(b)

	 	Ownership Structure
	SCHEDULE 6.1.(f)

	 	Properties
	SCHEDULE 6.1.(g)

	 	Indebtedness and Guaranties; Total Liabilities
	SCHEDULE 6.1.(h)

	 	Litigation
	SCHEDULE 6.1(r)

	 	Affiliate Transactions
	SCHEDULE 6.1(x)

	 	Unencumbered Assets
	 
	 	 
	EXHIBIT A

	 	Form of Assignment and Assumption Agreement






- iii -









 






	 	 	 
	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 Transfer Authorizer Designation Form
	EXHIBIT H

	 	Form of Revolving Note
	EXHIBIT I

	 	Form of Swingline Note
	EXHIBIT J

	 	Form of Opinion of Counsel
	EXHIBIT K

	 	Form of Compliance Certificate







- iv -











 





     THIS CREDIT AGREEMENT (this “Agreement”) dated as of November 3, 2009, by and among NATIONAL
RETAIL PROPERTIES, INC., a corporation formed 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 (“Administrative Agent”), BANK OF AMERICA, N.A., as the Syndication Agent (the
“Syndication Agent”), each of PNC BANK, NATIONAL ASSOCIATION and U.S. BANK NATIONAL ASSOCIATION, as
a Documentation Agent (each a “Documentation Agent”), and each of WELLS FARGO SECURITIES, LLC AND
BANC OF AMERICA SECURITIES LLC, as a joint lead arranger (each a “Joint Lead Arranger”) and joint
bookrunner (each a “Joint Bookrunner”).



     WHEREAS, the Administrative Agent, the Issuing Bank and the Lenders desire to make available
to the Borrower a $400,000,000 revolving credit facility with a $20,000,000 swingline subfacility
and a $30,000,000 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).



     “Administrative Agent” means Wells Fargo Bank, National Association, as contractual
representative for the Issuing Bank and the Lenders under the terms of 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; provided, however, in no event shall the
Administrative Agent, the Issuing Bank or any Lender or any of their respective Affiliates be an
Affiliate of the Borrower. For purposes of this definition, “control” (including with correlative
meanings, the terms “controlling”, “controlled by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or
otherwise.



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



 









 





     “Applicable Law” means all applicable provisions of constitutions, statutes, rules,
regulations and orders of any Governmental Authority, including all orders and decrees of all
courts, tribunals and arbitrators.



     “Applicable Margin” means the percentage per annum determined, at any time, based on the range
into which the Borrower’s Credit Rating then falls, in accordance with the levels in the table set
forth below (each a “Level”). As of the Agreement Date, the Applicable Margin is determined based
on Level 3. 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 Section 8.4.(m) 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, the Applicable Margin shall be
determined by the lower of such two Credit Ratings. During any period that the Borrower has
received three Credit Ratings, the Applicable Margin shall be determined by the lower of the
highest two Credit Ratings. During any period for which the Borrower has not received a Credit
Rating from both of Moody’s and S&P, the Applicable Margin shall be determined based on Level 5.



	 	 	 	 	 
	 	 	Borrower’s Credit Rating	 	 
	 	 	(S&P/Moody’s or	 	 
	Level	 	equivalent)	 	Applicable Margin
	 	 	 	 	 
	1
	 	A-/A3 (or equivalent) or better	 	2.40%
	2
	 	BBB+/Baa1 (or equivalent)	 	2.60%
	3
	 	BBB/Baa2 (or equivalent)	 	2.80%
	4
	 	BBB-/Baa3 (or equivalent)	 	3.00%
	5
	 	Lower than BBB-/Baa3 (or equivalent)	 	3.40%






     “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.



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



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



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



     “Bankruptcy Proceeding” means a case, proceeding or condition of any of the types described in
Section 10.1.(f) or (g).



     “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.



- 2 -









 





     “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.



     “Business Day” means (i) 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 (ii) if such
day relates to a LIBOR Loan, any such day that is also a day on which dealings in Dollar deposits
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.



     “Capitalization Rate” means 9.0% or such higher percentage to which the Capitalization Rate
may be increased pursuant to Section 2.11.



     “Capitalized Lease Obligation” means obligations under a lease that are required to be
capitalized for 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 Organization
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
$500,000,000.00 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 7 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 $500,000,000.00 and at least 85.0% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.



     “Collateral Account” means a special deposit account maintained by the Administrative Agent
and under its sole dominion and control.



     “Commitment” means, as to each Lender (other than the Swingline Lender), such Lender’s
obligation (a) to make Revolving Loans pursuant to Section 2.1., (b) to issue (in the case of the
Lender then acting as Issuing Bank) or participate in (in the case of the other Lenders) Letters of
Credit pursuant to Section 2.3.(a) and 2.3.(i), respectively (but in the case of the Lender acting
as the Issuing Bank excluding the aggregate amount of participations in the Letters of Credit held
by the other Lenders), and (c) to participate in Swingline Loans pursuant to Section 2.2.(e),
collectively, in an amount up to, but not exceeding, the amount set forth for such Lender on
Schedule I hereto as such Lender’s “Commitment



- 3 -









 







Amount” or as set forth in the applicable Assignment and Acceptance Agreement, as the same may be
reduced from time to time pursuant to Section 2.13. or increased or reduced as appropriate to
reflect any assignments to or by such Lender effected in accordance with Section 12.6.



     “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
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.



     “Construction Budget” means the fully budgeted costs associated with the acquisition and
construction of real property (including, but not limited to, the cost of acquiring such real
property) as reasonably determined by the Borrower in good faith.



     “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.



     “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.



     “Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b)
the Conversion of a 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.



     “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 2.3.(j) or participations in Swingline Loans under Section 2.2.(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.



     “Defaulting Lender Excess” means, with respect to any Defaulting Lender, the excess, if any,
of such Defaulting Lender’s Commitment Percentage of the aggregate outstanding principal amount of
Revolving Loans of all Lenders (calculated as if all Defaulting Lenders other than such Defaulting
Lender



- 4 -









 




had funded all of their respective Revolving Loans) over the aggregate outstanding principal amount
of all Revolving Loans of such Defaulting Lender.



     “Derivatives Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.



     “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 relating to such
Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been
closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Derivatives Contracts (which may include the Administrative Agent or any Lender).



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



     “EBITDA” means, with respect to a Person for any period (without duplication): (a) net income
(loss) (prior to Preferred Dividends and minority interests) of such Person for such period
determined on a consolidated basis, in accordance with GAAP, exclusive of the following
(but only to the extent included in determination of such net income (loss)): (i) depreciation and
amortization expense and other non-cash charges; (ii) Interest Expense (without giving effect to
clause (c) of the definition thereof); (iii) income tax expense or benefit; (iv) asset impairment
and restructuring charges; (v) gains and losses from the extinguishment of debt and interest rate
hedges, and (vi) extraordinary or non-recurring gains and losses, including without limitation,
gains and losses from the sale of Properties; plus (b) such Person’s pro rata share of EBITDA of
its Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from straight line
rent leveling adjustments required under GAAP and amortization of intangibles pursuant to Statement
of the Financial Accounting Standards No. 141 and include any principal component of payments
received under Finance Leases.



     “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 in writing
by the Requisite Lenders.



     “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 (i) the Administrative Agent and
(ii) unless a Default or Event of Default exists, the Borrower (each 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.



- 5 -









 








     “Eligible Mortgage Note Receivable” means a promissory note which satisfies 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 first priority Mortgage; (c) neither such promissory note,
nor any interest of the Borrower or such Guarantor therein, is subject to (i) any Lien other than
Permitted Liens of the types described in clauses (a) through (c) of the definition thereof or (ii)
any Negative Pledge; (d) the real property subject to such Mortgage is not subject to any other
Lien other than Permitted Liens of the types described in clauses (a) through (c) of the definition
thereof; (e) the real property subject to such Mortgage is free of all structural defects,
environmental conditions or other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable operation of such real
property; (f) such real property is occupied and is in operation (or will be in operation after the
completion of construction (which is otherwise permitted hereunder) with respect to such real
property); (g) any required principal, interest or other payment due under such promissory note is
not more than 60 days past due; and (h) there exists no default or event of default under such
promissory note.



     “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.



     “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 Plan or Multiemployer Plan; (d) the incurrence by
any member of the ERISA



- 6 -









 




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 for 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 a 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 304 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 an 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.



     “Excluded Asset” means either a lease by the Borrower or any Guarantor, as lessor, of a real
property asset, or a promissory note held by the Borrower or any Guarantor which is secured by a
Mortgage on real property, in either case where (a) any required base rental payment, or principal
or interest payment, as the case may be, is more than 60 days past due or (b) in the case of a
lease wherein the tenant is the subject of a Bankruptcy Proceeding, such lease has been rejected in
bankruptcy; provided that assets with respect to real property subject to a lease rejected in
bankruptcy shall cease to be considered Excluded Assets once such real property has been re-leased
to a third-party which is not otherwise subject to clause (a) or (b) above.



     “Excluded Subsidiary” means any Subsidiary (a) either (i) holding title to assets which are or
are to become collateral for any Secured Indebtedness of such Subsidiary which is prohibited from
Guarantying the Indebtedness of any other Person pursuant to (x) any document, instrument or
agreement evidencing such Secured Indebtedness or (y) 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 or (ii) that is not a Wholly Owned
Subsidiary and cannot become a party to the Guaranty without violating terms of its articles of
incorporation, operating agreement, partnership agreement, declaration of trust, shareholders
agreement, member agreement or other similar organizational document, which terms expressly
prohibit such Subsidiary from providing Guarantees of Indebtedness of any other Person and (b) for
which none of the Borrower, any Subsidiary (other than another Excluded Subsidiary) or any other
Loan Party has Guaranteed any of the Indebtedness of such Subsidiary (except for guarantees of
customary exceptions for fraud, misapplication of funds, environmental indemnities and other
similar exceptions to non-recourse liability (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)) or has any direct obligation to maintain or
preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any



- 7 -









 




specified levels of operating results. A Subsidiary shall remain an Excluded Subsidiary for so
long as (A) the above requirements are satisfied and (B) such Subsidiary does not Guarantee any
Indebtedness of any Person (other than another Excluded Subsidiary).



     “Existing Credit Agreement” means the Eighth Amended and Restated Credit Agreement, dated as
of December 13, 2005, by and among the Borrower, the financial institutions party thereto and their
assignees, Wachovia Bank, National Association, as Administrative Agent, and the other parties
thereto.



     “Existing Letters of Credit” means each of the letters of credit issued by Wachovia Bank,
National Association under the Existing Credit Agreement and described on Schedule 1.1(A).



     “Extension Notification Date” has the meaning given that term in Section 2.11.



     “Facility Fee” means the per annum 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
	 	0.35%
	2
	 	0.40%
	3
	 	0.45%
	4
	 	0.50%
	5
	 	0.60%





Any change in the applicable Level at which the Applicable Margin is determined shall result
in a corresponding and simultaneous change in the Facility Fee.



     “Fair Market Value” means, with respect to (a) a security listed on a national securities
exchange or the NASDAQ National Market, the price of such security as reported on such exchange 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.



     “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.



     “Fee Letter” means that certain fee letter dated as of September 17, 2009, by and among the
Borrower, the Administrative Agent and the other parties thereto.



     “Fees” means the fees and commissions provided for or referred to in Section 3.6. and any
other fees payable by the Borrower hereunder, under any other Loan Document or under the Fee
Letter.



     “Finance Lease” means a lease of a real property asset which would be categorized as a capital
lease under GAAP.



- 8 -









 





     “Fitch” means Fitch, Inc. and its successors.



     “Fixed Charges” means, for any period, the sum of (a) Interest Expense for such period, (b)
all regularly scheduled principal 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, and (c) all Preferred Dividends paid during such period.
The Borrower’s pro rata share of the Fixed Charges of Unconsolidated Affiliates of the Borrower
shall be included in determinations of Fixed Charges.



     “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.



     “GAAP” means generally accepted accounting principles 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 or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, 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.



     “Gross Lease Revenues” means, for a given period, the aggregate gross revenue and tenant
reimbursements of the Borrower and its Subsidiaries from leases of real property assets, (a)
excluding with respect to such leases that are not Finance Leases, straight line rent adjustments
(reported in the consolidated financial statements of the Borrower and its Subsidiaries for
purposes of GAAP) in respect of such leases for such period, and (b) including the principal
component of all payments actually received in respect of Finance Leases during such period. The
Borrower’s pro rata share of the aggregate gross revenue from leases of real property assets of any
Unconsolidated Affiliate of the Borrower shall be included.



     “Guarantor” means, individually and collectively, as the context shall require: (i) all
Material Subsidiaries (other than Excluded Subsidiaries), and (ii) any Subsidiary that elects to
become a Guarantor.



     “Guaranty”, “Guaranteed”, “Guarantying” 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 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



- 9 -









 




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 to which the Guarantors are parties 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 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 services rendered; (c) Capitalized Lease Obligations of such Person; (d)
all reimbursement obligations 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 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; (f) 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)); (g) net obligations under any Derivatives
Contract not entered into as a hedge against existing Indebtedness, in an amount equal to the
Derivatives Termination Value thereof; (h) all Indebtedness of other Persons which such Person has
guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities and other similar exceptions to
non-recourse liability (but not exceptions relating to bankruptcy, insolvency, receivership or
other similar events)); (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 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; and (j) such Person’s pro rata
share of the Indebtedness of any Unconsolidated Affiliate of such Person. Indebtedness of any
Person shall include Indebtedness of any partnership or joint venture in which such Person is a
general partner or joint venturer to the extent of such Person’s pro rata share of the ownership of
such partnership or joint venture (except if such Indebtedness, or portion thereof, is recourse to
such Person, in which case the greater of such Person’s pro rata portion of such Indebtedness or
the amount of the recourse portion of the Indebtedness, shall be included as Indebtedness of such
Person). All Loans and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.



- 10 -









 





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



     “Interest Expense” means, for any period, without duplication, (a) total interest expense of
the Borrower and its Subsidiaries, including capitalized interest not funded under a construction
loan interest reserve account, determined on a consolidated basis in accordance with GAAP for such
period, plus (b) the Borrower’s pro rata share of Interest Expense of Unconsolidated Affiliates for
such period less (c) non-cash interest expense from convertible debt pursuant to Financial
Accounting Standards Board Staff Position No. APB 14-1.



     “Interest Period” means with respect to any 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
immediately preceding Interest Period for such Loan, and ending one week thereafter (if available
from all of the Lenders) 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 one week) that commences on the last Business Day of a
calendar month (or on a day of a month 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, 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. Any binding 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 or any other Lender, each in its capacity as an issuer of
Letters of Credit pursuant to Section 2.3.



     “Joint Arranger” has the meaning given that term in the introductory paragraph hereof and
shall include successors and permitted assigns.



     “L/C Commitment Amount” equals $30,000,000.



     “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” shall not include any
Lender (or its Affiliates) in its capacity as a Specified Derivatives Provider.



- 11 -









 





     “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 Agreement, 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 2.3.(a).



     “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 Issuing Bank) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest under Section 2.3. 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 greater of (a) the rate of
interest, rounded up to the nearest whole multiple of one-hundredth of one percent (.01%), obtained
by dividing (i) the rate of interest 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 U.S. Dollars at approximately 9:00 a.m. Pacific time, 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 United States of America) and (b) the LIBOR Floor. 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 Floor” means 1.00%.



     “LIBOR Loan” means a Revolving 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 9:00 a.m. Pacific
time for such day (or if such day is not a Business Day, the immediately preceding Business Day).



- 12 -









 




The LIBOR Market Index Rate shall be determined on a daily basis and in no event shall be less than
the LIBOR Floor.



     “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 or 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 Uniform
Commercial Code or its equivalent in any jurisdiction; 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, the Guaranty
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, any Guarantor and each other Person who guarantees
all or a portion of the Obligations and/or who pledges any collateral security to secure all or a
portion of the Obligations. Schedule 1.1.(B) 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), (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.



     “Material Adverse Effect” means a materially adverse effect on (a) the business, assets,
liabilities, condition (financial or otherwise), 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 Debt” has the meaning given that term in Section 10.1.(e)(i).



     “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $1,000,000.



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     “Material Subsidiary” means any Subsidiary to which $15,000,000 or more of Real Property Value
is attributable on an individual basis.



     “Mezzanine Investment” means (a) a promissory note secured by a second Mortgage of which the
Borrower, a Guarantor or one of their respective Subsidiaries is the holder and retains the rights
of collection of all payments thereunder or (b) a promissory note of which the Borrower, a
Guarantor or one of their respective Subsidiaries is the holder and retains the rights of
collection of all payments thereunder which promissory note is secured by a pledge of Equity
Interests in a Person that owns a parcel (or group of related parcels) of real property subject to
a Mortgage.



     “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 property granting a Lien on such interest in real
property as security for the payment of Indebtedness of such Person or another Person.



     “Mortgage Receivable” means a promissory note secured by a first Mortgage of which the
Borrower, a Guarantor or one of their respective Subsidiaries 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 such 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 for purposes of this Agreement.



     “Net Operating Income” or “NOI” means, for any Property and for a given period, the sum of the
following (without duplication and determined on a consistent basis with prior periods): (a) Gross
Lease Revenues and other revenues received in the ordinary course from 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 (excluding interest but including an appropriate accrual for taxes and insurance)
related to the ownership, operation or maintenance of such Property, including but not limited to
taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, marketing expenses, and general and administrative expenses (including an
appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in
connection with such Property, but specifically excluding general overhead expenses of the Borrower
or any Subsidiary and any property management fees) minus (c) the greater of (i) the actual
property management fee paid during such period and (ii) an imputed management fee in the amount of
one percent (1.0%) of the gross revenues for such Property for such period.



     “Net Proceeds” means with respect to any 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



- 14 -









 




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.



     “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 customary exceptions to nonrecourse liability
(but not exceptions relating to bankruptcy, insolvency, receivership or other similar events)) 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.



     “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 2.2.(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 or any of 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” means U.S. Department of the Treasury’s Office of Foreign Assets Control and any
successor Governmental Authority.



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



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




- 15 -












 





     “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 pursuant to any Environmental Laws) or the claims of materialmen,
mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, which are not at the time required to be paid or discharged
under the applicable provisions of Section 7.5.; (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 intended use thereof in the business of such Person; (d) the rights of tenants under
leases or subleases not interfering with the ordinary conduct of business of such Person; (e)
Liens, if any, in favor of the Administrative Agent for its benefit and the benefit of the Lenders;
(f) Liens in favor of the Borrower or a Guarantor securing obligations owing by a Subsidiary to the
Borrower or a Guarantor; and (g) Liens in existence as of the Agreement Date and disclosed on Part
II of Schedule 6.1.(f).



     “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 optional or 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 four percent (4.0%).



     “Potential Defaulting Lender” means any Lender, as reasonably determined by the Administrative
Agent or the Swingline Lender, 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 period and without duplication, all Restricted Payments
paid during such period on Preferred Equity Interests 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 Equity Interests, other than scheduled redemptions not
constituting balloon, bullet or similar redemptions in full.



- 16 -









 





     “Preferred Equity Interests” means, with respect to any Person, Equity Interests in such
Person which are entitled to preference or priority over any 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 733 Marquette
Avenue, Minneapolis, Minnesota 55402, or such other office of the Administrative Agent as the
Administrative Agent may designate from time to time.



     “Property” means any parcel of real property (together with all improvements thereon) owned or
leased (in whole or in part) or operated by the Borrower, any Subsidiary or any Unconsolidated
Affiliate of the Borrower and which is located in a state of the United States of America, the
District of Columbia, Puerto Rico or Canada.



     “Qualified Plan” shall mean 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 Fitch.



     “Real Property Value” means the annualized Net Operating Income as of the last day of the
fiscal quarter of the Borrower most recently ended of all Properties in place at the end of such
fiscal quarter divided by the applicable Capitalization Rate.



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



     “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.



     “Requisite Lenders” means, as of any date, Lenders having at least 66-2/3% of the aggregate
amount of the Commitments, or, if the Commitments have been terminated or reduced to zero, Lenders
holding at least 66 2/3% of the aggregate principal amount of the outstanding Revolving Loans,
Swingline 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 are party to this Agreement, the term “Requisite Lenders”
shall in no event mean less than two Lenders unless only two Lenders are party to this Agreement
and one of such Lenders is a Defaulting Lender. For purposes of this definition, a Lender (other
than the Swingline Lender) shall be deemed to hold a Swingline Loan or a Letter of Credit Liability
to the extent such Lender has acquired



- 17 -









 




a participation therein under the terms of this Agreement and has not failed to perform its
obligations in respect of such participation.




     “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest of the Borrower or any Subsidiary now or hereafter outstanding,
except a dividend payable solely in Equity Interests of identical class 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 Equity Interest of the Borrower
or any Subsidiary 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 Subsidiary now or hereafter outstanding.



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



     “Revolving Note” has the meaning given that term in Section 2.10.(a).



     “Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published from time to time, as
such program may be applicable to such agency, organization or Person.



     “Sanctioned Person” means a Person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the OFAC as published from time to time.



     “Secured Indebtedness” means, with respect to any Person, as of any given date, the aggregate
principal amount of all Indebtedness of such Person outstanding at 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 pro rata share of the Secured Indebtedness 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.



     “Securitization Investment” means an investment in residual interests in securitized pools of
promissory notes, mortgage loans, chattel paper, leases or similar financial assets owned by the
Borrower, its Subsidiaries, or any other Loan Party as of June 30, 2009.



     “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 the fact 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 an Specified
Derivatives Provider.



     “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,



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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 Lender, or any Affiliate of a Lender that is a
party to a Derivatives Contract at the time the 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.



     “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 2.2. in an amount up to, but not exceeding, $20,000,000, 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
2.2.



     “Swingline Note” has the meaning given that term in Section 2.10.(a).



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



     “Tangible Net Worth” means, as of a given date, (a) the stockholders’ equity of the Borrower
and its Subsidiaries determined on a consolidated basis, plus (b) accumulated depreciation
and amortization to the extent reflected in the determination of stockholders’ equity of the
Borrower and its Subsidiaries, plus (c) the accumulated principal component of all payments made to
the Borrower and its Subsidiaries in respect of Finance Leases to the extent reflected in the
determination of stockholders’ equity of the Borrower and its Subsidiaries minus (d) the
following (to the extent reflected in determining stockholders’ equity of the Borrower and its
Subsidiaries): (i) the amount of any write-up in the book value of any assets contained in any
balance sheet resulting from revaluation thereof or any write-up in excess of the cost of such
assets acquired, and (ii) all amounts appearing on the assets side of any such balance sheet for
assets which would be classified as intangible assets under GAAP, all determined on a consolidated
basis.



     “Taxes” has the meaning given that term in Section 3.11.



- 19 -









 





     “Termination Date” means November 2, 2012, or such later date to which the Termination Date
may be extended pursuant to Section 2.11.



     “Titled Agents” means each of the Joint Arrangers, the Syndication Agent and each of the
Documentation Agents and their respective successors and permitted assigns.



     “Total Asset Value” means (without duplication): (a) Real Property Value plus (b) 50.0% of the
undepreciated cost of Properties that are developed but that are unleased and vacant plus
(c) the book value of construction and undeveloped land plus (d) unrestricted cash and cash
equivalents plus (e) book value of Mortgage Receivables plus (f) book value of notes and accounts
receivables. Borrower’s pro rata share of assets held by Unconsolidated Affiliates will be
included in Total Asset Value calculations consistent with the above described treatment for wholly
owned assets.



     “Total Liabilities” means, all GAAP liabilities including recourse and non-recourse mortgage
Indebtedness, letters of credit, purchase obligations, repurchase obligations, forward commitments
(including, but not limited to, forward equity commitments and commitments to purchase properties),
unsecured Indebtedness, accounts payable, accrued expenses, Capitalized Lease Obligations
(including ground leases to the extent required under GAAP to be reported as a liability),
Guarantees of Indebtedness, subordinated debt, and unfunded obligations. Total Liabilities will
include (without redundancy): (a) 100% of the recourse liability of the Borrower and its
Subsidiaries under (i) Guarantees of Indebtedness or (ii) loans where the Borrower or a Subsidiary
is liable for Indebtedness as a general partner or otherwise and (b) the pro rata share of the
Borrower or any of its Subsidiaries of Nonrecourse Indebtedness in Unconsolidated Affiliates or
Indebtedness that is not recourse to the Borrower and its other Subsidiaries. The calculation of
Total 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
Financial Accounting Standards Board ASC 825-10-25 (formerly known as Statement of Financial
Accounting Standards No. 159, The Fair Value Option for Financial Assets and Financial Liabilities)
or other Financial Accounting Standards Board standards allowing entities to elect fair value
option for financial liabilities. Therefore, the amount of liabilities that is included in the
calculation of Total Liabilities shall be the historical cost basis.



     “Transfer Authorizer Designation Form” means a form substantially in the form of Exhibit G to
be delivered to the Administrative Agent pursuant to Section 5.1.(xv), 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 is a LIBOR Loan or a
Base Rate Loan.



     “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 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 Value” means the sum (without duplication) of (a) the Real Property Value
attributable to Unencumbered Assets which are not Excluded Assets; plus (b) aggregate book value of
all Eligible Mortgage Notes Receivable; plus (c) all of the Borrower’s and Guarantors’ cash and
cash equivalents (excluding tenant deposits and other cash and cash equivalents the disposition of
which is restricted in any way); provided, however, that if the aggregate value of such cash and
cash equivalents would exceed 2.0% of Unencumbered Asset Value, the value of such cash and cash
equivalents in excess of 2.0% of Unencumbered Asset Value shall be excluded in the determination of
Unencumbered Asset Value hereunder; plus (d) 50.0% of the book value of all Unencumbered Assets
which are vacant but



- 20 -









 




which have not been vacant for more than 12 months; all as determined in accordance with GAAP. If
the aggregate value of the items described in the preceding clauses (b), (c) and (d) above exceeds
10.0% of Unencumbered Asset Value, the value in excess of 10.0% of Unencumbered Asset Value shall
be excluded in the determination of Unencumbered Asset Value.




     “Unencumbered Assets” means, collectively, each Property of the Borrower or any Guarantor that
meets the following criteria: (a) such Property is fully developed as a retail property; (b) the
Property is domestic and owned entirely by the Borrower and/or a Guarantor; (c) neither such
Property, nor any interest of the Borrower or any Subsidiary therein, is subject to any Lien (other
than Permitted Liens of the types described in clauses (a) through (d) and clause (f) of the
definition thereof) or a Negative Pledge; (d) if such Property is owned by a Guarantor (i) none of
the Borrower’s direct or indirect ownership interest in such Guarantor is subject to any Lien
(other than Permitted Liens described in clauses (a) through (c) of the definition thereof) or to a
Negative Pledge; and (ii) the Borrower directly, or indirectly through a Subsidiary, has the right
to take the following actions without the need to obtain the consent of any Person: (x) to sell,
transfer or otherwise dispose of such Property and (y) to create a Lien on such Property as
security for Indebtedness of the Borrower or such Guarantor, as applicable; and (e) such Property
is free of all structural defects or major architectural deficiencies, title defects, environmental
conditions or other adverse matters except for defects, deficiencies, conditions or other matters
individually or collectively which are not material to the profitable operation of such Property.



     “Unencumbered NOI” means the NOI attributable to Unencumbered Assets.



     “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 raw land on which no development (other than improvements that are not
material and are temporary in nature) has occurred and for which no development is scheduled in the
following 12 months.



     “Unsecured Indebtedness” means Indebtedness that is not Secured Indebtedness; provided,
however, that any Indebtedness that is secured by a pledge of only Equity Interests shall be deemed
to be Unsecured Indebtedness.



     “Unsecured Interest Expense” means, for a given period, all Interest Expense of the Borrower
and its Subsidiaries attributable to Unsecured Indebtedness of the Borrower and its Subsidiaries
for such period.



     “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” shall mean 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.



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Section 1.2. General; References to Pacific Time.




     Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP as in effect on the Agreement Date and consistently applied;
provided that, if at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or the Requisite
Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in
good faith to amend such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Requisite Lenders); provided further that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP. 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 as of the date of this Agreement and from time to time thereafter to the extent not
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 Pacific 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 2.15. below, during the period from the Effective
Date to but excluding the Termination Date, each Lender severally and not jointly agrees to make
Revolving Loans to the Borrower, in an aggregate principal amount at any one time outstanding up
to, but not exceeding, the amount of such Lender’s Commitment. Subject to the terms and conditions
of this Agreement, during the period from the Effective Date to but excluding the Termination Date,
the Borrower may borrow, repay and reborrow Revolving Loans hereunder.



     (b) Requests for Revolving Loans. Not later than 9:00 a.m. at least 1 Business Day
prior to a borrowing of Base Rate Loans and not later than 9:00 a.m. at least 3 Business Days prior
to a borrowing of 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



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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 later than 9:00 a.m. 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 at the Principal Office, not later than 12:00 noon on the date of the
requested borrowing of Revolving Loans, the proceeds of such amounts received by the Administrative
Agent. 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.



     (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 prior to the specified date of the borrowing that such Lender does not intend to make
available to the Administrative Agent the Revolving Loan to be made by such Lender on such date,
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 such Revolving Loan under Section 2.4.(a). 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. Swingline Loans.




     (a) Swingline Loans. Subject to the terms and conditions hereof, including without
limitation Section 2.15., during the period from the Effective Date to but excluding the Swingline
Termination Date, the Swingline Lender agrees to make Swingline Loans to the Borrower in an
aggregate principal amount at any one time outstanding up to, but not exceeding the Swingline
Commitment. 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.



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The borrowing of a Swingline Loan shall not constitute usage of any Lender’s Commitment for
purposes of calculation of the fee payable under Section 3.6.(b).




     (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 9:00 a.m. 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. On the date of the requested Swingline Loan and subject to
satisfaction of the applicable conditions set forth in Article V. 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 not later than 11:00 a.m. on such date.



     (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 payable
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 $50,000 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
prior written notice thereof no later than 10:00 a.m. on 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 5 Business Days after the date such Swingline Loan was made; provided, that the
proceeds of a Swingline Loan may not be used to repay 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 Termination 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 for such purpose),
request a borrowing of Base Rate Loans from the Lenders in an amount equal to the principal balance
of such Swingline Loan. The amount limitations contained in Section 3.5.(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection. The Swingline Lender shall give
notice to the Administrative Agent of any such borrowing of Base Rate Loans not later than 9:00
a.m. at least one Business Day prior to the proposed date of such borrowing, and the Administrative
Agent shall give prompt notice of such borrowing to the Lenders. Not later than 9:00 a.m. on such
date, 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 Base Rate Loan
to be made by such Lender, and, to the extent of such Base Rate Loan, such Lender’s participation
in the Swingline Loan so repaid shall be deemed to be



- 24 -









 




funded by such Base Rate Loan. The Administrative Agent shall pay the proceeds of such Base
Rate Loans to the Swingline Lender, which shall apply such proceeds to repay such Swingline Loan.
At the time each Swingline Loan is made, each Lender shall automatically (and without any further
notice or action) be deemed to have purchased from the Swingline Lender, without recourse or
warranty, an undivided interest and participation to the extent of such Lender’s Commitment
Percentage in such Swingline Loan. If the Lenders are prohibited from making Loans required to be
made under this subsection for any reason whatsoever, including without limitation, the occurrence
of any of the Defaults or Events of Default described in Sections 10.1.(f) or 10.1.(g), upon notice
from the Administrative Agent or the Swingline Lender, each Lender severally agrees to pay to the
Administrative Agent for the account of the Swingline Lender in respect of such participation the
amount of such Lender’s Commitment Percentage of each outstanding Swingline Loan in Dollars and in
immediately available funds. If such amount is not in fact made available to the Administrative
Agent 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 demand therefor
by the Administrative Agent or the Swingline Lender, 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 Loans, and any other amounts due such Lender 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). A Lender’s obligation to make payments in respect of 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. (f) or 10.1.(g), 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.




     (f) Defaulting Lenders. Upon demand by the Swingline Lender at any time while a
Lender is a Defaulting Lender or a Potential Defaulting Lender, 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.



Section 2.3. Letters of Credit.



(a) Letters of Credit. Subject to the terms and conditions of this Agreement, including
without limitation, Section 2.15., the Issuing Bank, on behalf of the Lenders, agrees to issue for
the account of the Borrower (or the Borrower and any other Loan Party) during the period from and
including the Effective Date to, but excluding, the date 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 the L/C Commitment Amount. The parties hereto
agree that the Existing Letters of Credit shall be deemed to be Letters of Credit hereunder.




- 25 -









 








     (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.



     (c) Requests for Issuance of Letters of Credit. The Borrower shall give the Issuing
Bank and the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) at least 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 application 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 V., 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 prior to the date 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. Upon the written request of the Borrower, the Issuing Bank shall deliver to
the Borrower a copy of (i) any Letter of Credit proposed to be issued hereunder prior to the
issuance thereof and (ii) 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 on 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 (other than notice as provided in this subsection). 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 Section 2.3.(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 has failed to reimburse the Issuing Bank for a demand for payment under a
Letter of Credit by the date of such payment, after which the Issuing Bank has notified the
Administrative Agent, then (i) if the applicable



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conditions contained in Article V. would permit the making of Revolving Loans, the Borrower shall
be 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 1:00 p.m., and (ii) if such conditions would not permit the making of
Revolving Loans, the provisions of subsection (j) of this Section shall apply. The minimum amount
limitations of Section 3.5.(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 the 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, Administrative Agent’s or
any Lender’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 shall be absolute,
unconditional and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement or 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 Letter of Credit or any other Person, whether in connection with this Agreement, the
transactions



- 27 -









 




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
the Letter of Credit against presentation of a draft or certificate which does not strictly comply
with the terms of the 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.




     (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 3.6.(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, 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 3.6.(c)).



     (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. 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.(f) or (g) or (iv) the



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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 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 Section 2.3.(j).



     (l) Existing Letters of Credit. With respect to each of the Existing Letters of
Credit and any extensions of such Existing Letters of Credit made in accordance with the terms and
conditions hereunder, Wachovia Bank, National Association (together with its successors) shall be
deemed to be an Issuing Bank hereunder and shall have all of the rights and obligations under and
in respect of this Agreement and the other Loan Documents, and shall be entitled to all of the same
benefits (including, without limitation, the rights, obligations and benefits set forth in this
Section 2.3. and in Sections 12.2. and 12.10.) as are afforded to an Issuing Bank hereunder and
thereunder in its capacity as an Issuing Bank (and not as a Lender).



     (m) Defaulting Lenders. Upon demand by the Administrative Agent at any time while a
Lender is a Defaulting Lender or a Potential Defaulting Lender, 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.



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 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 calendar
month, commencing with the first full calendar month occurring after the Effective Date and (ii) on
any date on which the



- 29 -









 




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. Promptly after the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall give notice thereof to the Lenders to which such interest
is payable and to the Borrower. 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.




Section 2.5. Number of Interest Periods.




     There may be no more than 6 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 in whole or
in part at any time without premium or penalty. The Borrower shall give the Administrative Agent
at least 3 Business Days’ prior written notice of the prepayment of any LIBOR Loan and 1 Business
Day’s prior written notice of prepayment of any Base Rate Loan.



     (b) Mandatory. If at any time the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all outstanding Letter of Credit
Liabilities, and the aggregate principal amount of all outstanding Swingline Loans exceeds the
aggregate amount of the Commitments in effect at such time, the Borrower shall immediately pay to
the Administrative Agent for the accounts of the Lenders then holding Commitments (or if the
Commitments have been terminated, then holding outstanding Revolving Loans, Swingline Loans, and/or
Letter of Credit Liabilities), the amount of such excess. Such payment shall be applied to pay all
amounts of principal outstanding on the Loans and any Reimbursement Obligations in accordance with
the last sentence of Section 3.2., and if any Letters of Credit are outstanding at such time, the
remainder, if any, shall be deposited into the 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, 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 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 9:00 a.m. 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 Loan and portion 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



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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, or 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.




     So long as no Default or Event of Default exists, 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 Loan of one Type into a
Loan of another Type. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and
only on, the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate
Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the date of Conversion on the
principal amount so Converted in accordance with Section 2.4. Each such Notice of Conversion shall
be given not later than 9:00 a.m. one Business Day prior to the date of any proposed Conversion
into Base Rate Loans and 3 Business Days prior to the date of any proposed Conversion into LIBOR
Loans. 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 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. The Revolving Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a promissory note of the Borrower substantially in the form of
Exhibit H (each a “Revolving Note”), payable to the order of such Lender in a principal amount
equal to 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 promissory note of the Borrower substantially in the form of Exhibit I (the
“Swingline Note”), 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.



     (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 3.9., in the absence of
manifest error, the statements of account maintained by the Administrative Agent pursuant to
Section 3.9. 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.



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Section 2.11. Extension of Termination Date.




     Subject to the terms of this Section, the Borrower shall have the right, exercisable one time,
to request that the Administrative Agent and the Lenders extend the Termination Date by one year.
The Borrower may exercise such right only by executing and delivering to the Administrative Agent
at least 90 days but not more than 180 days prior to the current Termination Date, a written
request for such extension (an “Extension Request”). The Administrative Agent shall forward to
each Lender a copy of the Extension Request delivered to the Administrative Agent promptly upon
receipt thereof. Not later than the date that is 30 days after the Administrative Agent’s receipt
of the Extension Request, the Administrative Agent shall notify the Borrower if the Requisite
Lenders have determined to condition the extension of the Termination Date on an increase in the
Capitalization Rate to a percentage not to exceed 10.0%, and if so, what the new Capitalization
Rate to become effective on the current Termination Date would be. Any new Capitalization Rate
shall be the rate determined by the Requisite Lenders on the basis of then current market
conditions and data. If the Requisite Lenders determine to condition the extension of the
Termination Date on an increase in the Capitalization Rate, then not later than the date that is 30
days prior to the current Termination Date (the “Extension Notification Date”), the Borrower shall
notify the Administrative Agent in writing of its decision to extend or not to extend the
Termination Date by one year. If the Borrower fails to provide such written notification on or
prior to the Extension Notification Date, the Borrower shall be deemed to have elected to extend
the Termination Date by one year. If the Borrower elects, or is deemed to have elected, to extend
the Termination Date, then subject to satisfaction of the following conditions, the Termination
Date shall be extended for one year: (a) if the Requisite Lenders have conditioned the extension of
the Termination Date on an increase in the Capitalization Rate, the Borrower shall have caused to
be executed and delivered to the Administrative Agent such documents and agreements as the
Administrative Agent may request to evidence such increase, (b) immediately prior to such extension
and immediately after giving effect thereto, no Default or Event of Default shall exist, (c) 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 would be true and correct immediately after giving
effect to the requested extension of the Termination 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 (d) the Borrower shall have paid the Fees payable under Section 3.6.(d).



Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination Date.




     If on the date the Commitments are terminated (whether voluntarily, by reason of the
occurrence of an Event of Default or otherwise), there are any Letters of Credit outstanding
hereunder, 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 equal to the Stated Amount of
such Letter(s) of Credit for deposit into the Collateral Account. If a drawing pursuant to any
such Letter of Credit occurs on or prior to the expiration date of such Letter of Credit, the
Borrower authorizes the Administrative Agent to use the monies deposited in the 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. If no drawing occurs on or
prior to the expiration date of such Letter of Credit, the Administrative Agent shall pay to the
Borrower (or to whomever else may be legally entitled thereto) the monies deposited in the
Collateral Account with respect to such outstanding Letter of Credit on or before the date 30 days
after the expiration date of such Letter of Credit.



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Section 2.13. Voluntary Reductions of the Commitment.




     The Borrower may 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 Letter of Credit
Liabilities and the aggregate principal amount of all outstanding Swingline Loans) at any time and
from time to time without penalty or premium upon not less than 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 and shall be irrevocable
once given and effective only upon receipt by the Administrative Agent (“Commitment Reduction
Notice”); provided, however, that if the Borrower seeks to reduce the aggregate amount of the
Commitments below $100,000,000, then the Commitments shall be reduced to zero and except as
otherwise provided herein, the provisions of this Agreement shall terminate. 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 terminated or reduced pursuant
to this Section, may not be increased or reinstated. The Borrower shall pay all interest and fees
on the Loans 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. of this Agreement.



Section 2.14. Increase of Commitments.




     The Borrower shall have the right at any time and from time to time during the period
beginning on the Effective Date through and including the date 180 days prior to the Termination
Date to request increases in the aggregate amount of the Commitments (provided that after giving
effect to any increases in the Commitments pursuant to this Section, the aggregate amount of the
Commitments shall not exceed $500,000,000) by providing written notice to the Administrative Agent,
which notice shall be irrevocable once given. Each such increase in the Commitments must be an
aggregate minimum amount of $50,000,000 and integral multiples of $15,000,000 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, 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 agrees to increase its Commitment, such Lender shall on the date it becomes a Lender
hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (determined with respect to the
Lenders’ relative 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 2.3.(j) which 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 or correct on the effective date of such increase except to the extent that such
representations and warranties expressly relate solely to an earlier



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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, 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, partnership, member or other necessary action taken by the Borrower to authorize such
increase and (B) all corporate, partnership, member or other necessary action taken by each
Guarantor authorizing the guaranty of such increase; and (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 Notes executed by the Borrower,
payable to any new Lenders and replacement 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 2.14. any
Lender becoming a party hereto shall execute such documents and agreements as the Administrative
Agent may reasonably request.




Section 2.15. Amount Limitations.




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



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 by an authorized representative specified on the Transfer Authorizer Designation Form and
accepted by the Administrative Agent in good faith and in compliance with this Section 2.16., 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 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 or 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 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



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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.
None of the Administrative Agent, the Issuing Bank or 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 deduction, set-off or counterclaim, to the Administrative Agent at the Principal
Office, not later than 11:00 a.m. 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 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, within one Business Day of receipt of such
amounts, 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



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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
Sections 2.1.(a), 2.2.(e), and 2.3.(e) shall be made from the Lenders, each payment of the Fees
under Sections 3.6.(b), the first sentence of Sections 3.6.(c) and Section 3.6.(d) shall be made
for the account of the Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.13. 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 by the Borrower 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 3.10., 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 by the Borrower 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 Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 4.6.) shall be made pro
rata among the Lenders according to the amounts of their respective Loans and the then current
Interest Period for each Lender’s portion of each Loan of such Type shall be coterminous; (e) the
Lenders’ participation in, and payment obligations in respect of, Swingline Loans under Section
2.2., shall be in accordance with their respective Commitment Percentage; and (f) the Lenders’
participation in, and payment obligations in respect of, Letters of Credit under Section 2.3.,
shall be in accordance with their respective Commitment Percentage. All payments of principal,
interest, fees and 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 2.2.(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 (i) during the existence of a Default or Event of Default shall be made for the
account of the Lenders in accordance with the order set forth in Section 10.5. and (ii) pursuant to
Section 2.7.(b), shall be made for the account of the Swingline Lender and the Lenders holding
Commitments (or, if the Commitments have been terminated, holding Revolving Loans and Letter of
Credit Liabilities) 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 Loan 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



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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. Minimum Amounts.




     (a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess thereof. Each
borrowing and each Conversion of LIBOR Loans shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $100,000 in excess of that amount.



     (b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess thereof (or, if
less, the aggregate principal amount of Revolving Loans then outstanding).



     (c) Reductions of Commitments. Each reduction of the Commitments under Section 2.13.
shall be in an aggregate minimum amount of $10,000,000 and integral multiples of $5,000,000 in
excess thereof.



     (d) Letters of Credit. The initial Stated Amount of each Letter of Credit shall be at
least $50,000.



Section 3.6. 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. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee equal to the average daily amount of the Commitment of such
Lender (whether or not utilized) times the Facility Fee for the period from and including the
Agreement Date to but excluding the date such Commitment is terminated or reduced to zero or the
Termination Date, such fee



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to be paid quarterly in arrears on (i) the last day of each March, June, September and December in
each year, (ii) the date of each reduction in the Commitments (but only on the amount of the
reduction) and (iii) on the Termination Date. The Borrower 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 terminated or (y) to but excluding the date such Letter of Credit is drawn
in full. The fees provided for in the immediately preceding sentence shall be nonrefundable and
payable in arrears (i) quarterly on the last day of March, June, September and December in each
year, (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. In addition to
such fees, the Borrower shall pay to the Issuing Bank solely for its own account and not the
account of any Lender, a fronting fee in respect of each Letter of Credit at the rate equal to
one-eighth of one percent (0.125%) per annum on the daily average Stated Amount of such Letter of
Credit for the period from and including the date of issuance of such Letter of Credit (A) through
and including the date such Letter of Credit expires or is terminated or (B) to but excluding the
date such Letter of Credit is drawn in full. The fee provided for in the immediately preceding
sentence shall be nonrefundable and payable upon issuance of the applicable 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 by the Issuing Bank from time to
time in like circumstances with respect to the issuance of each Letter of Credit, drawings,
amendments, extensions, renewals and other transactions relating thereto.



     (d) Extension Fee. If the Borrower exercises its right to extend the Termination Date
in accordance with Section 2.11., the Borrower agrees to pay to the Administrative Agent for the
account of each Lender a fee equal to two-fifths of one percent (0.40%) of the amount of such
Lender’s Commitment (whether or not utilized). Such fee shall be due and payable in full on the
Extension Notification Date.



     (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 by the Borrower and the Administrative Agent from time to time.



Section 3.7. Computations.




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



Section 3.8. 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



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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 (a)(ii) and in Section 2.2.(c). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees, facility fees, closing
fees, letter of 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 3.9. 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 3.10. 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 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 an increase in such Lender’s Commitment or an
extension of the Termination Date of such Lender’s Loans or other Obligations owing to such Lender,
in each case, without such Lender’s consent. 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 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 and the Lenders may have against such
Defaulting Lender under this Agreement, any of the other Loan Documents, Applicable Law or
otherwise.



     (b) Treatment of Payments. Until the Defaulting Lender Excess of a Defaulting Lender
has been reduced to zero, any payment of the principal of the Revolving Loans shall, unless the
Requisite



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Lenders agree otherwise, be applied to the outstanding principal balance of the Revolving Loans of
the applicable Lenders that are not Defaulting Lenders. 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 retained by the Administrative Agent in
a segregated non-interest bearing account until such Defaulting Lender has ceased to be a
Defaulting Lender in accordance with subsection (f) below or the termination of the Commitments and
payment in full of all Obligations of the Borrower hereunder and the other Loan Documents, at which
time such amounts will be applied by the Administrative Agent to the making of payments from time
to time in the following order of priority: first, to the payment of any amounts owing by
such Defaulting Lender to the Administrative Agent and the Swingline Lender under this Agreement;
second, to the payment of interest then due and payable to the Lenders hereunder other than
Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and
payable to them; third, to the payment of Fees then due and payable to the Lenders other
than Defaulting Lenders, ratably among them in accordance with the amounts of such Fees then due
and payable to them; fourth, to pay principal of all Loans, Reimbursement Obligations and
other Letter of Credit Liabilities then due and payable to the Lenders, other than Defaulting
Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them;
fifth, to the ratable payment of all other Obligations then due and payable to the Lenders
other than Defaulting Lenders; and sixth, after the termination of the Commitments and
payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this
Agreement 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 Loans shall be excluded for purposes of calculating any Fee
payable to the Lenders under Sections 3.6.(b), 3.6.(c) and 3.6.(d), 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) 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 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 (contingent or otherwise) of such Defaulting Lender or Potential Defaulting
Lender in respect of such Letters of Credit.



     (e) Purchase of Defaulting Lender’s Commitment. During any period that a Lender is a
Defaulting Lender, the Borrower may, by giving written notice thereof to the Administrative Agent,
such Defaulting Lender and the other Lenders, demand that such Defaulting Lender assign its
Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section
12.6.(c). No party hereto shall have any obligation whatsoever to initiate any such replacement or
to assist in finding an Eligible Assignee. In connection with any such assignment, such Defaulting
Lender shall promptly execute all documents reasonably requested to effect such assignment,
including an appropriate Assignment and Acceptance and, notwithstanding Section 12.6.(c), shall pay
to the Administrative Agent an assignment fee in the amount of $10,000.



     (f) Termination of Defaulting Lender’s Commitments. During any period that a Lender
is a Defaulting Lender, the Borrower may terminate in full the Commitments of such Defaulting
Lender by giving notice to such 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



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Event of Default exists (unless the Requisite Lenders otherwise consent to such Defaulting Lender
Termination), (ii) no Revolving Loans shall be outstanding, and (iii) the sum of (x) the Letter of
Credit Liabilities, (y) the amount of cash collateral or other credit support then held by the
Administrative Agent pursuant to Section 2.3.(m) and (z) the outstanding principal amount of
Swingline Loans shall not exceed the aggregate Commitments of all Lenders that are not Defaulting
Lenders. 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) after the date
on which such notice is delivered to such Defaulting Lender and the Administrative Agent. On each
such Defaulting Lender Termination Date, (i) the Commitments of such Defaulting Lender shall be
reduced to zero, (ii) such Defaulting Lender shall cease to be a “Lender” hereunder (provided that
any 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), (iii) the Commitments of all other Lenders shall remain unchanged and (iv) the
Commitment Percentages of outstanding Letter of Credit Liabilities and Swingline Loans will be
reallocated by the Administrative Agent among the Lenders (other than the Defaulting Lender) in
accordance with their Commitment Percentages after giving effect to the Defaulting Lender
Termination.




     (g) 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 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 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 the Borrower or any other party hereunder arising
from such Lender’s having been a Defaulting Lender or Potential Defaulting Lender.



Section 3.11. 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 (i) franchise taxes, (ii) any taxes (other than withholding taxes) that would not be
imposed but for a connection between the Administrative Agent, the Issuing Bank or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by virtue of the
activities of the Administrative Agent, the Issuing Bank or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or measured by the
Issuing Bank’s or any Lender’s assets, net income, receipts or branch profits, and and (iv) any
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other charges to the
extent imposed as a result of the failure of the Agent, the Issuing Bank or a Lender, as
applicable, to provide and keep current (to the extent legally able) any certificates, documents or
other evidence required to qualify for an exemption from, or reduced rate of, any such taxes fees,
duties, levies, imposts, charges, deductions, withholdings or other charges or required by the
immediately following subsection (c) to be furnished by the Administrative Agent, Issuing Bank or
such Lender, as applicable



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(such non-excluded items being collectively called “Taxes”). If any withholding or deduction from any
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 outside the United States of America becomes a party hereto, 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 (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 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 last sentence of subsection (a) above to any Lender or Participant that is organized
under the laws of a jurisdiction outside of the United States of America or the Administrative
Agent, if it is organized under the laws of a jurisdiction outside of the United States of America,
if such Lender, Participant or the Administrative Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant 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 fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services



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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 in the Loans 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) 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 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 30 calendar
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 clause (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 taxes imposed on or measured by the overall net income of such Lender
or of its Lending Office for any of such LIBOR Loans by the jurisdiction in which such Lender has
its principal office or such Lending Office), or (ii) imposes or modifies any reserve, special
deposit or similar requirements (including without limitation, 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) 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 hereunder shall be suspended until such Regulatory Change ceases to be
in effect (in which case the provisions of Section 4.6. 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. 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.
Absent manifest error, 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, provided that such determinations are made on a reasonable basis and in good faith.



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



- 44 -









 






     (b) the Administrative Agent reasonably determines (which determination shall be
conclusive) 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 and fairly reflect 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, the Lenders shall be under no obligation to, and shall
not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the
Borrower shall, on the last day of each current Interest Period for each outstanding LIBOR Loan,
either prepay such Loan or Convert such Loan into a Base Rate Loan.




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 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 4.6. 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 reasonable 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 V. 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 (i) 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 (ii) 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, as applicable, calculating present 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. Absent manifest error, any such statement shall be conclusive, provided that
such determinations are made on a reasonable basis and in good faith.




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Section 4.5. Affected Lenders.




     If (a) a Lender requests compensation pursuant to Section 3.11. or 4.1., and the Requisite
Lenders are not requesting compensation under such Sections, 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 Sections 4.1.(c) or 4.3. but the obligation of the Requisite Lenders shall not have
been suspended under such Sections, 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.(c) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to the Affected Lender. 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 Lender nor
any other Lender 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 Section 3.11. or 4.1.



Section 4.6. 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) 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) 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.(c) or Section 4.3. that gave rise to such
Conversion no longer exist:




     (i) 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




     (ii) 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.



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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 3.11., 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 IV. 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 IV.



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 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 existing as of the Effective
Date;




     (iv) The articles of incorporation of the Borrower certified as of a recent date by the
Secretary of State of the State of Maryland;




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




     (vi) A certificate of incumbency signed by the Secretary or Assistant Secretary of the
Borrower with respect to each of the officers of the Borrower authorized to execute and
deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower
then



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authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of
Continuation and Notices of Conversion and to request the issuance of Letters of Credit;




     (vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i)
the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the
Borrower to authorize the execution, delivery and performance of the Loan Documents to which
the Borrower is a party;




     (viii) The articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of each Guarantor
certified as of a recent date by the Secretary of State of the state of formation of such
Guarantor;




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




     (x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Guarantor with respect to each of the
officers of such Guarantor authorized to execute and deliver the Loan Documents to which
such Guarantor is a party;




     (xi) Copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Guarantor of (i) the by-laws of such Guarantor, 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 (ii) all corporate, partnership, member or other
necessary action taken by such Guarantor to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;




     (xii) An opinion of counsel to the Loan Parties addressed to the Administrative Agent,
the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit J;




     (xiii) The Fees then due and payable under Section 3.6., and any other Fees payable to
the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective
Date, including without limitation, the fees and expenses of counsel to the Administrative
Agent;




     (xiv) A Compliance Certificate calculated as of June 30, 2009 (giving pro forma effect
to the financing contemplated by this Agreement and the use of the proceeds of the Loans to
be funded on the Effective Date);




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




     (xvi) evidence that all indebtedness, liabilities or obligations (other than
obligations in respect of Existing Letters of Credit) 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; and



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     (xvii) 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:




     (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 (1)
result in a Material Adverse Effect or (2) 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 (1) any Applicable Law or (2) any agreement, document
or instrument to which the Borrower or any other 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 would 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; and




     (iv) 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 the Lenders to make any Loans and of the Issuing Bank to issue Letters of
Credit, are all 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 2.15. 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 in all material respects 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, in its
sole and absolute



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discretion, waive this condition precedent on behalf of itself and all Lenders if cash collateral
or other credit support satisfactory to the Issuing Bank has been pledged or otherwise provided to
the Administrative Agent in respect of such Defaulting Lender’s or Potential Defaulting Lender’s
participation in such Letter of Credit in accordance with Section 2.3.(m). Each Credit Event shall
constitute a certification by the Borrower to the effect set forth clauses (a) and (b) of 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.




Section 5.3. Conditions as Covenants.




     If the Lenders permit the making of any Loans, or the Issuing Bank issues a Letter of Credit,
prior to the satisfaction of all conditions precedent set forth in Sections 5.1. and 5.2., the
Borrower shall nevertheless cause such condition or conditions to be satisfied within 5 Business
Days after the date of the making of such Loans or the issuance of such Letter of Credit. Unless
set forth in writing to the contrary, the making of its initial Loan by a Lender shall constitute a
confirmation by such Lender to the Administrative Agent and the other Lenders that insofar as such
Lender is concerned the Borrower has satisfied the conditions precedent for initial Loans set forth
in Sections 5.1. and 5.2.



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, each other Loan Party
and each other Subsidiary 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. As of the Agreement Date, Part I of Schedule 6.1.(b) is 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) the type of legal entity
of such Subsidiary, (iii) each Person holding any Equity Interests in such Subsidiary, (iv) the
nature of the Equity Interests held by each such Person, (v) the percentage of ownership of such
Subsidiary represented by such Equity Interests, and (vi) whether such Subsidiary is a Material
Subsidiary and/or an Excluded Subsidiary. Except as disclosed in such Schedule, as of the
Agreement Date (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



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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.




     (c) Authorization of Agreement, Etc. 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 and Fee Letter with Laws, Etc. The execution,
delivery and performance of this Agreement, Notes and the other Loan Documents to which the
Borrower or any other 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 the Borrower or any other 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 the Borrower or
any other Loan Party.



     (e) Compliance with Law; Governmental Approvals. The Borrower, each Subsidiary and
each other Loan Party is in compliance with each Governmental Approval applicable to it and all
other Applicable Laws (including without limitation, all Environmental Laws) relating to the
Borrower, each Subsidiary or such other Loan Party 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. As of the Agreement Date, Part I of Schedule 6.1.(f)
sets forth all of the real property owned or leased by the Borrower, each other Loan Party and each
other Subsidiary. Each such Person 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 of
the assets of the Borrower, any Subsidiary or any other Loan party except for the Liens existing as
of the Agreement Date set forth on Part II of Schedule 6.1.(f) and the other Permitted Liens.



     (g) Existing Indebtedness; Total Liabilities. Part I of Schedule 6.1.(g) is, as of
the Agreement Date, a complete and correct listing of all Indebtedness (including without
limitation all Guarantees) of the Borrower and its 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 Loan Parties and the other Subsidiaries have performed and are in material
compliance with all of the terms of such



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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. Part II of
Schedule 6.1.(g) is, as of the Agreement Date, a complete and correct listing of all Total
Liabilities of the Loan Parties and the other Subsidiaries (excluding any Indebtedness set forth on
Part I of such Schedule).




     (h) Litigation. Except as set forth on Schedule 6.1.(h), there are no actions, suits,
investigations or proceedings pending (nor, to the knowledge of the Borrower, are there any
actions, suits or proceedings threatened, nor to the knowledge of the Borrower is there any basis
therefor) against or in any other way relating adversely to or affecting, the Borrower, any
Subsidiary or any other Loan Party 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) if adversely
determined, 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 the Borrower, any Subsidiary or any other Loan party which could reasonably
be expected to have a Material Adverse Effect.



     (i) Taxes. All federal, state and other tax returns of the Borrower, any Subsidiary
or any other Loan Party 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 the
Borrower, any Subsidiary and each other Loan Party 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 7.5. As of the Agreement Date, none of the United States
income tax returns of the Borrower, its Subsidiaries or any other Loan Party is under audit. All
charges, accruals and reserves on the books of the Borrower and each of its Subsidiaries and each
other Loan Party in respect of any taxes or other governmental charges are in accordance with GAAP.



     (j) 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
years ended December 31, 2007 and December 31, 2008, and the related audited consolidated
statements of operations, shareholders’ equity and cash flow for the fiscal years ended on such
dates, 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, 2009,
and the related unaudited consolidated statements of operations, shareholders’ equity and cash flow
of the Borrower and its consolidated Subsidiaries for the period of two fiscal quarters 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, except as referred to or reflected or provided for in said
financial statements.



     (k) No Material Adverse Change; Solvency. Since December 31, 2008, there has been no
event, change, circumstance or occurrence that could reasonably be expected to have a Material
Adverse Effect. Each of the Borrower, the other Loan Parties and each Subsidiary to which more
than $25,000,000 of Total Asset Value is attributable, is Solvent, and the Borrower and its
Subsidiaries, taken as a whole, are Solvent.



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     (l) 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 the 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 Parent and the Borrower, nothing has occurred which would cause the loss of their
reliance on the 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 Statement of Financial Accounting Standards No. 106. 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 Statement of Financial Accounting Standards No. 158.




     (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 Parent and 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.



     (m) Not Plan Assets; No Prohibited Transactions. None of the assets of the Borrower,
any other Loan Party or any other Subsidiary constitute “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 borrowing and repayment of amounts hereunder, do not and will not constitute
“prohibited transactions” under ERISA or the Internal Revenue Code.



     (n) Absence of Default. Neither the Borrower, any Subsidiary nor any other Loan Party
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, a determination of
materiality, the satisfaction of any condition, or any combination of the foregoing, would
constitute a default or event of default by the Borrower, any Subsidiary or any other Loan Party
under any agreement (other than this Agreement) or judgment, decree



- 53 -









 




or order to which the Borrower or any Subsidiary or other Loan Party is a party or by which the
Borrower or any Subsidiary or other Loan Party or any of their respective properties may be bound
where such default or event of default could, individually or in the aggregate, have a Material
Adverse Effect.




     (o) Environmental Laws. In the ordinary course of business and from time to time each
of the Borrower, its Subsidiaries and the other Loan Parties conducts reviews of the effect of
Environmental Laws on its respective business, operations and properties, including without
limitation, their respective Properties, in the course of which the Borrower, each Subsidiary and
each other Loan Party identifies and evaluates associated actual and potential liabilities and
costs (including, without limitation, determining whether any capital or operating expenditures are
required for clean-up or closure of properties presently or previously owned, determining whether
any capital or operating expenditures are required to achieve or maintain compliance in all
material respects with Environmental Laws or required as a condition of any Governmental Approval,
any contract, or any related constraints on operating activities, determining whether any costs or
liabilities exist in connection with on-site or off-site treatment, storage, handling and disposal
of wastes or Hazardous Materials, and determining whether any actual or potential liabilities to
third parties, including employees, and any related costs and expenses exist). Each of the
Borrower, its Subsidiaries and the other Loan Parties: (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 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, the Borrower has no knowledge of, nor 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 the Borrower, its
Subsidiaries and each other Loan Party, 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, its
Subsidiaries or any other Loan Party relating in any way to Environmental Laws which could
reasonably 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. To
Borrower’s knowledge, no Hazardous Materials generated at or transported from the Properties is or
has been transported to, or disposed of at, any location that is listed or proposed for listing on
the National Priority List or any analogous state or local priority list, or any other location
that is or has been the subject of a clean-up, removal or remedial action pursuant to any
Environmental Law, except to the extent that such transportation or disposal could not reasonably
be expected to result in a Material Adverse Effect.



     (p) Investment Company. None of the Borrower, any Subsidiary or any other Loan Party
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



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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.




     (q) Margin Stock. None of the Borrower, any Subsidiary or any other Loan Party 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.



     (r) Affiliate Transactions. Except as permitted by Section 9.10. or as otherwise set
forth on Schedule 6.1.(r), neither the Borrower, any Subsidiary nor any other Loan Party is a party
to or bound by any agreement or arrangement (whether oral or written) to which any Affiliate of the
Borrower, any Subsidiary or any other Loan Party is a party.



     (s) Intellectual Property. Each of the Borrower, each other Loan Party and each other
Subsidiary owns or has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade name rights, trade
secrets and copyrights (collectively, “Intellectual Property”) necessary to the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without known conflict with
any patent, license, franchise, trademark, trade secret, trade name, copyright, or other
proprietary right of any other Person. The Borrower, each other Loan Party and each other
Subsidiary have taken all such steps as they reasonably deem necessary to protect their 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 Intellectual Property by the Borrower, any other Loan
Party or any other Subsidiary, or challenging or questioning the validity or effectiveness of any
Intellectual Property. The use of such Intellectual Property by the Borrower, its Subsidiaries and
the other Loan Parties, 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.



     (t) Business. As of the Agreement Date, the Borrower and its Subsidiaries are engaged
in the business of acquiring, owning, financing, leasing, managing, developing and selling retail,
office and industrial real property generally leased to credit-worthy tenants under net leases,
together with other business activities incidental thereto.



     (u) 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 or
any of its Subsidiaries ancillary to the transactions contemplated hereby.



     (v) Accuracy and Completeness of Information. No written information, report or other
papers or data (excluding 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
Subsidiary or any other Loan Party in connection with or relating in any way to this Agreement,
contained any untrue statement of a fact material to the creditworthiness of the Borrower, any
Subsidiary or any other Loan Party or omitted to state a material fact necessary in order to make
such statements contained therein, in light of the circumstances under which they were made, not
misleading. All financial statements furnished to the Administrative Agent or any Lender by, on
behalf of, or at the direction of, the Borrower, any Subsidiary or any other Loan Party in
connection with or relating in any way to this Agreement, 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



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periods. All financial projections and other forward looking statements prepared by or on behalf
of the Borrower, any Subsidiary or any other Loan Party 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. As of the Effective Date, no fact is known to the Borrower which has had,
or may in the future have (so far as the Borrower can reasonably foresee), a Material Adverse
Effect which has not been set forth in the financial statements referred to in Section 6.1.(j) or
in such information, reports or other papers or data or otherwise disclosed in writing to the
Administrative Agent and the Lenders.




     (w) 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.



     (x) Unencumbered Assets. As of the Agreement Date, Schedule 6.1.(x) is a correct and
complete list of all Unencumbered Assets. Each of the assets included by the Borrower in
calculations of Unencumbered Asset Value satisfies all of the requirements contained in the
definition of “Unencumbered Asset”.



     (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 Foreign Assets Control (“OFAC”) available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, 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/eotffc/ofac/sanctions/index.html, 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 the Loan will be used to finance any
operations, investments or activities in, or make any payments to, any such country, agency,
organization, or person.



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 the Borrower, any Subsidiary or any other Loan Party 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 the Borrower prior to the Agreement Date and delivered to the
Administrative Agent or any Lender in connection with closing the transactions contemplated hereby)
shall constitute representations and warranties made by the Borrower in favor of the Administrative
Agent or any of the Lenders 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 2.11. and the date of the occurrence of any 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 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.



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Article VII. Affirmative Covenants




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.7., all of the Lenders) shall otherwise consent in the manner provided for
in Section 12.7., the Borrower shall comply with the following covenants:



Section 7.1. Preservation of Existence and Similar Matters.




     Except as otherwise permitted under Section 9.7., the Borrower shall, and shall cause each
Subsidiary and each other Loan Party 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.



Section 7.2. Compliance with Applicable Law.




     The Borrower shall, and shall cause each Subsidiary and each other Loan Party to, comply with
all Applicable Laws, including the obtaining of all Governmental Approvals, the failure with which
to comply could reasonably be expected to have a Material Adverse Effect.



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 Subsidiary and other Loan Party to (a) protect and preserve all of its material
properties, including, but not limited to, all Intellectual Property, and maintain in good repair,
working order and condition all tangible properties, ordinary wear and tear excepted, and (b) 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. Insurance.




     In addition to the requirements of any of the other Loan Documents, the Borrower shall, and
shall cause each Subsidiary and other Loan Party to, maintain insurance (on a full 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, and from time to time deliver to the Administrative Agent upon its request a
detailed list, together with copies of all policies of the insurance then in effect if requested,
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. Subject to the requirements
of any applicable lease, the Borrower shall, and shall cause its Subsidiaries to, apply any
proceeds from such insurance coverage with respect to any Unencumbered Asset to either (i) repair
or rebuild the property for which such proceeds are being received, (ii) acquire a substantially
equivalent property or (iii) repay Obligations.



Section 7.5. Payment of Taxes and Claims.




     The Borrower shall, and shall cause each Subsidiary and other Loan Party to, pay and discharge
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



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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 the Borrower, such
Subsidiary or such other Loan Party, as applicable, in accordance with GAAP.




Section 7.6. Inspections.




     The Borrower shall, and shall cause each Subsidiary and other Loan Party 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 Borrower’s presence 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,
and at all times subject to the rights of tenants under their respective leases. 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.



Section 7.7. Use of Proceeds; Letters of Credit.




     The Borrower shall use the proceeds of Loans and the Letters of Credit only (a) to refinance
all of the Indebtedness outstanding under the Existing Credit Agreement and (b) for general
corporate purposes of the Borrower and its Subsidiaries. The Borrower shall not, and shall not
permit any Subsidiary or other Loan Party to, use any part of such proceeds (a) 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 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;
provided, however, the Borrower may use proceeds of the Loans and Letters of Credit
to purchase the Borrower’s common stock so long as such use will not result in any of the Loans,
Letters of Credit or other Obligations being considered to be “purpose credit” directly or
indirectly secured by margin stock within the meaning of Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System or (b) fund any operations in, finance any investments
or activities in, or make any payments to, a Sanctioned Person or Sanctioned Entity.



Section 7.8. Environmental Matters.




     The Borrower shall, and shall cause all of its Subsidiaries and the other Loan Parties 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 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 in all
material respects. 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 in all material respects with all Environmental Laws and all
Governmental Approvals, 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
the Loan Parties and the other Subsidiaries to, promptly take 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.



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Section 7.9. Books and Records.




     The Borrower shall, and shall cause each of its Subsidiaries and the other Loan Parties to,
maintain books and records pertaining to its respective business operations in such detail, form
and scope as is consistent with good business practice and in accordance with GAAP.



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 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. New Subsidiaries /Guarantors.




     (a) Requirement to Become Guarantor. Within 30 calendar days of any Person (other
than an Excluded Subsidiary) becoming a Material Subsidiary after the Effective Date, the Borrower
shall deliver to the Administrative Agent each of the following items, each 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 Sections 5.1.(a)(viii) through (xii), and
(xvii) as if such Subsidiary had been one on the Effective Date; provided, however,
promptly (and in any event within 10 Business Days) upon any Material Subsidiary ceasing to qualify
as an Excluded Subsidiary, such Subsidiary shall comply with the provisions of this Section. Upon
the request of any Lender, the Administrative Agent shall send to such Lender a copy of each of the
foregoing items received by the Administrative Agent with respect to a Subsidiary.



     (b) Other Guarantors. If at any time the Real Property Value attributable to all
Subsidiaries (excluding Material Subsidiaries and Excluded Subsidiaries) that are not Guarantors
exceeds $50,000,000 in the aggregate, the Borrower shall cause one or more of such Subsidiaries to
become Guarantors by delivering to the Administrative Agent the items required to be delivered
under the immediately preceding subsection (a) within 30 calendar days of such occurrence so that
the Real Property Value attributable to such Subsidiaries does not exceed $50,000,000.



     (c) Release of a Guarantor. 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 meets, or will meet
simultaneously with its release from the Guaranty, all of the provisions of the definition of the
term “Excluded Subsidiary” and none of the Guarantor’s Properties or other assets are to be taken
into account when calculating Unencumbered Asset Value; (ii) such Guarantor is not otherwise
required to be a party to the Guaranty under the immediately preceding subsection (a); (iii) 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.; 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.



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Section 7.12. REIT Status.




     The Borrower shall at all times maintain its status as a REIT.



Section 7.13. 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 the subject of
price quotations in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System.



Article VIII. Information




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.7., all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.7., the Borrower shall furnish to the Administrative Agent for distribution to each of
the Lenders:



Section 8.1. Quarterly Financial Statements.




     As soon as available and in any event within 5 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 45 days after the end 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 earnings, 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 executive officer or chief financial 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).



Section 8.2. Year-End Statements.




     As soon as available and in any event within 5 days after the same is required to be 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
earnings, stockholders’ 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 certified by (a) the chief executive officer or chief financial officer
of the Borrower, in his or her opinion, to present fairly, in accordance with GAAP 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 and (b) independent certified public
accountants of recognized national standing acceptable to the Administrative Agent, whose
certificate shall be unqualified and in scope and substance satisfactory to the Requisite Lenders
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.



Section 8.3. Compliance Certificate; Additional Information.




     At the time financial statements are furnished pursuant to Sections 8.1. and 8.2., a
certificate substantially in the form of Exhibit K (a “Compliance Certificate”) executed by the
chief financial officer of the Borrower: (a) setting forth in reasonable detail as at the end of
such quarterly accounting period,



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fiscal year, or other fiscal period, as the case may be, the calculations required to establish
whether or not the Borrower was in compliance with the covenants contained in Sections 9.1., 9.2.
and 9.4. 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, whether it is continuing and the
steps being taken by the Borrower with respect to such event, condition or failure. Together with
any Compliance Certificate delivered with financial statements furnished pursuant to Sections 8.1.
and 8.2., the Borrower shall deliver reports, in form and detail satisfactory to the Administrative
Agent, setting forth (a) a description of all Properties acquired during such fiscal quarter,
including the net operating income of each such Property, acquisition costs and related mortgage
debt and such other information as the Administrative Agent may request; and (b) all Unencumbered
Assets at the end of such fiscal quarter.




Section 8.4. Other Information.




     (a) Management Reports. Promptly upon receipt thereof, copies of all management
reports, if any, submitted to the Borrower or its Board of Directors by its independent public
accountants;



     (b) Securities Filings. Promptly upon, and in any event within 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 the Borrower, any Subsidiary or any other Loan Party shall file with the Securities
and Exchange Commission (or any Governmental Authority substituted therefor) or any national
securities exchange;



     (c) Shareholder Information; Press Releases. 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) Projections. No later than December 31 of each fiscal year of the Borrower ending
prior to the Termination Date (or by the end of each fiscal quarter of the Borrower ending prior to
the Termination Date upon the Administrative Agent’s request), projected balance sheets, operating
statements, profit and loss projections and cash flow budgets (including sources and uses of cash
in form and content reasonably satisfactory to the Administrative Agent) of the Borrower and its
Subsidiaries on a consolidated basis for the period of four consecutive fiscal quarters immediately
following such fiscal year end or fiscal quarter end, as applicable, prepared on a quarterly basis
and all itemized in reasonable detail. The foregoing shall be accompanied by pro forma
calculations, together with detailed assumptions, required to establish whether or not the
Borrower, and when appropriate its consolidated Subsidiaries, is projected to be in compliance with
the covenants contained in Sections 9.1. at the end of each fiscal quarter of the next succeeding
fiscal year. Such projected consolidated financial statements shall represent the reasonable best
estimate by the Borrower of the future financial performance of the Borrower and its Subsidiaries
for the periods set forth therein and shall be prepared on the basis of assumptions set forth
therein, which the Borrower believes are fair and reasonable as of the date of preparation in light
of current and reasonably foreseeable business conditions (it being understood that actual results
may differ from those set forth in such projected financial statements).



     (e) ERISA. 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 Parent
setting forth details as to such occurrence and the action, if any, which the Parent or applicable
member of the ERISA Group is required or proposes to take;



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     (f) Litigation. To the extent the Borrower, any other 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, the Borrower, any other Loan Party or any other Subsidiary or any of their
respective properties, assets or businesses which, if determined or resolved adversely to such
Person, 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;



     (g) Modification of Organizational Documents. A copy of any material amendment to the
certificate or articles of incorporation, bylaws, partnership agreement or other similar
organizational documents of the Borrower or any other Loan Party promptly upon, and in any event
within 15 Business Days after, the effectiveness thereof;



     (h) Change of Management or Financial Condition. Prompt notice of any material change
in the executive management of the Borrower, any Subsidiary or any other Loan Party and any change
in the business, assets, liabilities, condition (financial or otherwise), results of operations or
business prospects of the Borrower, any Subsidiary or any other Loan Party which has had or could
reasonably be expected to have a Material Adverse Effect;



     (i) Default. Notice of the occurrence of any Default or Event of Default promptly
upon a Responsible Officer of the Borrower, any other Loan Party or any other Subsidiary obtaining
knowledge thereof;



     (j) Judgments. Prompt notice of any order, judgment or decree in excess of
$25,000,000 having been entered against the Borrower, any Subsidiary or any other Loan Party or any
of their respective properties or assets;



     (k) Notice of Violations of Law. 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 with respect to any matters, in either case which
could reasonably be expected to have a Material Adverse Effect;



     (l) Material Asset Sales. Prompt notice of the sale, transfer or other disposition of
any assets having a book value or fair market value in excess of $50,000,000 in the aggregate of
the Borrower, any Subsidiary or any other Loan Party to any Person other than the Borrower, any
Subsidiary or any other Loan Party;



     (m) Ratings Change. Promptly, and in any event within 2 Business Days of any change
in the Borrower’s Credit Rating, a certificate stating that the Borrower’s Credit Rating has
changed and providing the new Credit Rating that is in effect;



     (n) Patriot Act Information. 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) Notice of Violation of Environmental Laws. Promptly, and in any event within 3
Business Days after the Borrower receives any of the following notices, the Borrower shall provide
the Administrative Agent with a copy of such notice if the matters referenced in such notice either
individually or in the aggregate could reasonably be expected to have a Material Adverse Effect:
(i) the



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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;




     (p) Derivatives Termination Value. Promptly upon the request of the Administrative
Agent, the Derivatives Termination Value in respect of any Specified Derivatives Contract from time
to time outstanding; and



     (q) Other Information. 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 (A) notices to
any Lender (or the Issuing Bank) pursuant to Article II. and (B) any Lender that has not notified
the Administrative Agent or 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 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 the Borrower notifies each Lender of said
posting and provides a link thereto provided 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 9:00 a.m. on the opening of business 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.



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     (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 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”. Notwithstanding
anything to the contrary in this Section, any Information Materials provided without any
designation shall be deemed to be “Private Information” for all purposes hereunder.




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.



Article IX. Negative Covenants




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.7., all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.7., the Borrower shall comply with the following covenants:



Section 9.1. Financial Covenants.




     The Borrower shall not permit:



     (a) Maximum Leverage Ratio. The ratio of (i) Total Liabilities to (ii) Total Asset
Value, to exceed 0.60 to 1.00 at any time.



     (b) Minimum Fixed Charge Ratio. The ratio of (i) EBITDA for the fiscal quarter of the
Borrower most recently ended to (ii) Fixed Charges for such period, to be less than 1.75 to 1.00 at
any time.



     (c) Unencumbered Asset Ratio. The ratio of (i) Unencumbered Asset Value to (ii)
Unsecured Indebtedness of the Borrower and its Subsidiaries, to be less than 1.67 to 1.00 at any
time. For purposes of this subsection (c), during any period that the ratio of Total Liabilities
to Total Asset Value is greater than 0.50 to 1.00, the amount of Secured Indebtedness of the
Borrower and its



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Subsidiaries that is not Nonrecourse Indebtedness in excess of 5.00% of Total Asset Value shall be deemed to be
Unsecured Indebtedness.




     (d) Unencumbered Interest Ratio. The ratio of (i) Unencumbered NOI to (ii) Interest
Expense in respect of Unsecured Indebtedness of the Borrower and its Subsidiaries for such period,
to be less than 2.00 to 1.00 at any time.



     (e) Minimum Tangible Net Worth. Tangible Net Worth at any time to be less than (i)
$1,350,000,000 plus (ii) 85.0% of the Net Proceeds of all Equity Issuances effected by the Borrower
or any Subsidiary after June 30, 2009 (other than Equity Issuances to the Borrower or any
Subsidiary).



     (f) Maximum Secured Indebtedness Ratio. The ratio of (i) Secured Indebtedness of the
Borrower and its Subsidiaries to (ii) Total Asset Value, to exceed 0.30 to 1.00 at any time.



     (g) Revenues from Ground Leases. The ratio (expressed as a percentage) of (i) the
aggregate income of the Borrower and its Subsidiaries from properties leased by the Borrower and
its Subsidiaries (as lessees) under ground leases for any fiscal quarter ending during the term of
this Agreement to (ii) Gross Lease Revenues for such fiscal quarter, to exceed 5.0%.



     (h) Industry/Tenant Concentrations. The percentage of Gross Lease Revenues for any
fiscal quarter of the Borrower attributable to (i) Convenience Stores and Gas Automotive Service
Stores to exceed 35.0%; (ii) Restaurants to exceed 25.0%; (iii) Convenience Stores, Gas Automotive
Service Stores and Restaurants, collectively, to exceed 52.5%; provided, however,
that failure to comply with the immediately preceding clause (iii) shall not constitute a Default
or Event of Default and the Borrower shall be deemed to be in compliance with the immediately
preceding clause (iii) so long as (A) such percentage does not exceed 55.0% for a period of more
than two consecutive quarters and (B) the Borrower shall not have previously used the exception
provided in clause (A); (iv) each other industry, individually, not specified in the immediately
preceding clauses (i) through (iii) to exceed 20.0%; (v) any single tenant and its Affiliates
(other than either Susser Holding Corp. and The Pantry Inc. and their respective Affiliates) to
exceed 10.0%; (v) Susser Holdings Corp. and its Affiliates to exceed 12.0%, and (vi) The Pantry
Inc. and its Affiliates to exceed 12.0%.



Section 9.2. Restricted Payments.




     If any Event of Default exists, the Borrower shall not, and shall not permit any Subsidiary
to, declare or make any Restricted Payment other than cash distributions to its shareholders during
any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower
to remain in compliance with Section 7.12. If an Event of Default specified in Section 10.1.(a),
Section 10.1.(b), Section 10.1.(f) or Section 10.1.(g) exists 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 whatsoever other than to the Borrower or any Subsidiary that is a Guarantor.



Section 9.3. Indebtedness.




     The Borrower shall not, and shall not permit any Subsidiary or any other Loan Party to, incur,
assume, or otherwise become obligated in respect of any Indebtedness after the Agreement Date if
immediately prior to the assumption, incurring or becoming obligated in respect thereof, or
immediately thereafter and after giving effect thereto, 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.



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Section 9.4. Certain Permitted Investments.




     The Borrower and the Guarantors shall not, and shall not permit any of their Subsidiaries to,
(a) make any Securitization Investments after the Agreement Date and (b) make any Investment, or
otherwise own the following items, which would cause the aggregate value of such holdings of the
Borrower, the Guarantors and such Subsidiaries to exceed the applicable limits set forth below:




     (i) Investments in Unconsolidated Affiliates such that the aggregate book value of such
Investments determined in accordance with GAAP exceeds 15.0% of Total Asset Value at any
time;




     (ii) Mezzanine Investments, Securitization Investments, and Mortgage Receivables
(including without limitation, Eligible Mortgage Notes Receivable) such that the aggregate
book value of all such Mezzanine Investments, Securitization Investments, and Mortgage
Receivables, collectively, exceeds 12.5% of Total Asset Value at any time; provided that the
aggregate book value of Mezzanine Investments and Securitization Investments, collectively,
shall not exceed 5.0% of Total Asset Value at any time; and




     (iii) Unimproved Land and the aggregate Construction Budget for all real property, such
that the current book value of Unimproved Land and the aggregate Construction Budget for all
real property, collectively, exceeds 10.0% of Total Asset Value at any time; provided that
the current book value of all Unimproved Land shall not exceed 5.0% of Total Asset Value at
any time; and




     (iv) Investments in Equity Interests of any Person (other than their respective
Subsidiaries and Unconsolidated Affiliates) such that such Investments in such Equity
Interests exceeds 5.0% of Total Asset Value at any time.


In addition to the foregoing limitations, the aggregate value of all of the items subject to the
limitations in the preceding clauses (b)(ii) through (b)(iv) shall not exceed 20.0% of Total Asset
Value at any time.




Section 9.5. Conduct of Business.




     The Borrower shall not, and shall not permit any Subsidiary or any other Loan Party to, engage
in any type of business except as described in Section 6.1.(t).



Section 9.6. Liens; Negative Pledges; Other Matters.




     (a) The Borrower shall not, and shall not permit any Subsidiary or other Loan Party 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 Subsidiary or other Loan Party 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 the Borrower or such Subsidiary may create,
incur, assume, or permit or suffer to exist under Section 9.3., (y) which Indebtedness is secured
by a Lien permitted to exist under the Loan Documents, and (z) which prohibits the creation of any
other Lien on




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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.




     (c) The Borrower shall not, and shall not permit any Subsidiary or other Loan Party 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: (i) 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; (ii) pay any Indebtedness owed to the Borrower
or any Subsidiary; (iii) make loans or advances to the Borrower or any Subsidiary; or (iv) transfer
any of its property or assets to the Borrower or any other Subsidiary.



Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.




     The Borrower shall not, and shall not permit any Subsidiary or other Loan Party to: (i) enter
into any transaction of merger or consolidation; (ii) liquidate, wind up 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, 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, each Subsidiary and each other Loan Party may sell, transfer or dispose of
assets among themselves;



     (c) 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; and



     (d) a Person may merge with and into the Borrower, any Subsidiary or any Loan Party so long as
(i) the Borrower, such Subsidiary or such Loan Party, as applicable, 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 Administrative 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).


If, as a result of the consummation of any transaction described in the immediately preceding
clause (a) or (b), a Person would become a Subsidiary that has assets having a book value or fair
market value in excess of $50,000,000 in the aggregate and that is not an Excluded Subsidiary, the
Borrower shall not permit the consummation of such transaction unless the items described in
Section 7.11. (a) are delivered to the Administrative Agent at the time of the consummation of such
transaction.




Section 9.8. 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.




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Section 9.9. Modifications of Organizational Documents.




     The Borrower shall not, and shall not permit any other Loan Party or other Subsidiary to,
amend, supplement, restate or otherwise modify its articles or certificate of incorporation,
by-laws, operating agreement, declaration of trust, partnership agreement or other applicable
organizational document without the prior written consent of the Administrative Agent and the
Requisite Lenders if such amendment, supplement, restatement or other modification could reasonably
be expected to have a Material Adverse Effect.



Section 9.10. Transactions with Affiliates.




     The Borrower shall not permit to exist or enter into, and shall not permit any of its
Subsidiaries or any other Loan Party 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 of the Borrower, such Subsidiary or such Loan Party, except (a) as set forth on Schedule
6.1.(r), (b) transactions between and among the Borrower and its Wholly Owned Subsidiaries or (c)
transactions in the ordinary course of and pursuant to the reasonable requirements of the business
of the Borrower, such Subsidiary, or such Loan Party and upon fair and reasonable terms which are
no less favorable to the Borrower, such Subsidiary, or such Loan Party than would be obtained in a
comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the
forgoing, no payments may be made with respect to any items set forth on such Schedule 6.1.(r) if a
Default or Event of Default exists or would result therefrom.



Section 9.11. ERISA Exemptions.




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



Section 9.12. Environmental Matters.




     The Borrower shall not, and shall not permit its Subsidiaries or any other Loan Party 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 the violation of which 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.



Section 9.13. Derivatives Contracts.




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



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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 of Principal. The Borrower shall fail to pay when due (whether
upon demand, at maturity, by reason of acceleration or otherwise) the principal of any of the
Loans, or any Reimbursement Obligation.



     (b) Default in Payment of Interest and Other Obligations. The Borrower 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 or any other Loan Document, 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 such failure shall continue for a period of 5 Business Days.



     (c) Default in Performance.




     (i) The Borrower 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.(i) or in
Article IX.; or




     (ii) The Borrower or any other 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
clause (ii) only, such failure shall continue for a period of 30 calendar days after the
earlier of (x) the date upon which a Responsible Officer of the Borrower or any 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.



     (d) Material Misrepresentations. Any written statement, representation or warranty
made or deemed made by or on behalf of the Borrower or any other 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 or made or deemed made by or on behalf of the Borrower or any other
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.



     (e) Indebtedness Cross- Default.




     (i) The Borrower, any Subsidiary or any other Loan Party shall fail to pay when due and
payable, after the expiration of any applicable notice and cure period, the principal of, or
interest on, any Indebtedness (other than the Loans) having an aggregate outstanding
principal amount of (or, in the case of any Derivatives Contract, having, without regard to
the effect of any close-out netting provision, a Derivatives Termination Value) of
$25,000,000 or more (“Material Debt”); or




     (ii) (x) The maturity of any Material Debt shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument evidencing, providing for the
creation



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of or otherwise concerning such Material Debt or (y) any Material Debt shall have been
required to be prepaid or repurchased prior to the stated maturity thereof; or




     (iii) Any other event exists, with or without the passage of time, the giving of
notice, or otherwise, would permit any holder or holders of any Material Debt, any trustee
or agent acting on behalf of such holder or holders or any other Person, to accelerate the
maturity of any such Material Debt or require any such Material Debt to be prepaid or
repurchased prior to its stated maturity; or




     (iv) As a result of any Loan Party’s failure to perform or observe any term, covenant,
condition or agreement contained in any Derivatives Contract, such Derivatives Contract is
terminated and the Derivatives Termination Value owed by such Loan Party as a result thereof
is $25,000,000 or more.



     (f) Voluntary Bankruptcy Proceeding. The Borrower, any other Loan Party or any
Subsidiary to which Subsidiary more than $25,000,000 of Total Asset Value is attributable 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.



     (g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Borrower, any other Loan Party or any Subsidiary to which Subsidiary more than
$25,000,000 of Total Asset Value is attributable 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 in the case of either
clause (i) or (ii) such case or proceeding shall 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.



     (h) Litigation; Enforceability. The Borrower or any other Loan Party shall (or shall
attempt to) disavow, revoke or terminate (or attempt to terminate) any Loan Document to which it is
a party or the Fee Letter 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).



     (i) Judgment. A judgment or order for the payment of money or for an injunction
shall be entered against the Borrower, any Subsidiary or any other Loan Party, by any court or
other tribunal and (i) such judgment or order shall continue for a period of 30 days without being
paid, stayed or dismissed



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through appropriate appellate proceedings and (ii) either (A) the amount of such judgment or order
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) exceeds, individually or together with all
other such outstanding judgments or orders entered against the Borrower, such Subsidiaries and such
other Loan Parties, $25,000,000 or (B) in the case of an injunction or other non-monetary judgment,
such judgment could reasonably be expected to have a Material Adverse Effect.




     (j) Attachment. A warrant, writ of attachment, execution or similar process shall be
issued against any property of the Borrower, any Subsidiary or any other Loan Party which exceeds,
individually or together with all other such warrants, writs, executions and processes, $25,000,000
in amount and such warrant, writ, execution or process shall not be discharged, vacated, stayed or
bonded for a period of 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 any Loan Party.



     (k) 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 $25,000,000;
or




     (ii) The “benefit obligation” of all Plans exceeds the “fair market value of plan
assets” for such Plans by more than $25,000,000, all as determined, and with such terms
defined, in accordance with Statement of Financial Accounting Standards No. 158.



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



     (m) 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”)), 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 35.0% of the total voting power of
the then outstanding voting stock of the Borrower; or




     (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
Directors of the Borrower (together with any new directors 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 directors 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.



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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.(f) or 10.1.(g), (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 Collateral Account pursuant to Section 10.5. and (C) all of the other
Obligations of the Borrower, including, but not limited to, the other amounts owed to the
Lenders, the Swingline Lender, the Issuing Bank and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived by the Borrower, and (2) all of the
the Commitments, the obligation of the Lenders to make Revolving Loans hereunder, the
Swingline Commitment, the obligation of the Swingline Lender to make Swingline Loans, 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 other Event of Default for deposit into the Collateral Account
pursuant to Section 10.5. and (C) all of the other Obligations, including, but not limited
to, the other amounts owed to the Lenders, the Issuing Bank 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, and (2) terminate the Commitments and the obligation of the Lenders to make Loans
hereunder and the obligation of the Issuing Bank to issue Letters of Credit hereunder. If
the Administrative Agent has exercised any of the rights provided under the preceding
sentence, the Swingline Lender shall: (x) declare the principal of, and accrued interest
on, the Swingline Loans and the Swingline Note at the time outstanding, and all of the other
Obligations owing to the Swingline Lender, 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 and (y) terminate the
Swingline Commitment and the obligation of the Swingline Lender to make Swingline Loans.



     (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



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take possession of all or any portion of 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 the 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, 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 including 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.(g), 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 and/or the Issuing Bank and/or any Lender and/or any Specified Derivatives Provider, or the
Administrative Agent and/or the Issuing Bank and/or any Lender and/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, 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 or
the Termination Date has occurred, 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;



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     (c) payments of interest on all other Loans to be applied for the ratable benefit of
the Lenders, in such order as the Lenders may determine in their sole discretion;




     (d) payments of principal on Swingline Loans;




     (e) payments of principal of all other Loans, to be applied for the ratable benefit of
the Lenders, as the case may be, in such order as the Lenders may determine in their sole
discretion;




     (f) amounts to be deposited into the Collateral Account in respect of Letters of
Credit;




     (g) amounts due to the Administrative Agent and the Lenders pursuant to Sections 10.7.
and 12.10.;




     (h) payments of all other Obligations and all other amounts due and owing by the
Borrower an the other Loan Parties under any of the Loan Documents, if any, to be applied
for the ratable benefit of the Lenders; and




     (i) 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. Collateral Account.




     (a) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities, the Borrower hereby pledges and grants to the Administrative Agent, for the 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 Collateral Account established pursuant to
the requirements of Section 2.12. and the balances from time to time in the Collateral Account
(including the investments and reinvestments therein provided for below). The balances from time
to time in the Collateral Account shall not constitute payment of any Letter of Credit Liabilities
until applied by the Administrative Agent as provided herein. Anything in this Agreement to the
contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal only
as provided in this Section and in Section 2.12.



     (b) Amounts on deposit in the Collateral Account shall be invested and reinvested by the
Administrative Agent in such Cash Equivalents as the Administrative Agent shall 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, provided, that all earnings on
such investments will be credited to and retained in the Collateral Account. The Administrative
Agent shall exercise reasonable care in the custody and preservation of any funds held in the
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 Collateral Account.



     (c) 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 credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances in the Collateral
Account to the payment of any of the Letter of Credit Liabilities due and payable.



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     (d) So long as no Default or Event of Default exists, the Administrative Agent shall, from
time to time, at the request of the Borrower, deliver to the Borrower within 10 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 the balances in the Collateral Account
as exceed 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 Collateral Account.



     (e) 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 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 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.



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



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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 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 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. 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. 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 and 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 inspect the
property, books or records of the Borrower or any other Person; (c) shall be responsible to any
Lender or



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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.




Section 11.3. 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 Agent receives such a “notice of default,” the Administrative Agent
shall give prompt notice thereof to the Lenders.



Section 11.4. Wells Fargo as Lender.




     Wells Fargo, as a Lender or as a Specified Derivatives Provider, as the case may be, shall
have the same rights and powers under this Agreement and any other Loan Document and under any
Specified Derivatives Contract, as the case may be, as any other Lender or Specified Derivatives
Provider 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, other Lenders, or any other Specified Derivatives
Providers. Further, the Administrative Agent and any affiliate may accept fees and other
consideration from the Borrower for services in connection with this Agreement or any Specified
Derivatives Contract, or otherwise without having to account for the same to the Issuing Bank, the
other Lenders or any other Specified Derivatives Providers. 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 11.5. 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,



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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 a 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
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 11.6. 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 as to the
financial condition, operations, creditworthiness, solvency or other information concerning the
business or affairs of the Borrower, any other Loan Party, any Subsidiary or any other Person 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 any other Affiliates thereof,
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, 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.



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Section 11.7. Indemnification of Administrative Agent.




     Regardless of whether the transactions contemplated by this Agreement and the other Loan
Documents are consummated, 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, costs,
expenses or disbursements 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, 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 11.8. Successor Administrative Agent.




     The Administrative Agent may (i) resign at any time as Administrative Agent under the Loan
Documents by giving written notice thereof to the Lenders and the Borrower or (ii) be removed as
Administrative Agent under the Loan Documents, if the Administrative Agent is a Defaulting Lender,
by all of the Lenders (other than the Lender then acting as the Administrative Agent), provided
that no Default or Event of Default exists, with the written consent of the Borrower (not to be
unreasonably withheld or delayed), in each case, upon not less than 30 days’ prior written notice
to the Administrative Agent. Upon any such resignation, 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



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accordance with the immediately preceding sentence, and shall have accepted such appointment,
within 30 days after the current Administrative Agent’s giving of notice of resignation, 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. 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 “Joint Lead Arrangers”, the “Joint Bookrunners”, and the “Syndication Agent” (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 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.



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:


National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: Chief Financial Officer

Telecopy Number:  (407) 650-1044

Telephone Number: (407) 650-1230



With a copy to:



National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: General Counsel

Telecopy Number:  (321) 206-2138

Telephone Number:  (407) 650-1115




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     If to the Administrative Agent:


Wells Fargo Bank, National Association

2859 Paces Ferry Road, Suite 1200

Atlanta, Georgia 30339

Attn: Walter R. Gillikin

Telecopier:  (770) 435-2262

Telephone:  (770) 319-3271




     If to the Issuing Bank:


Wells Fargo Bank, National Association

2859 Paces Ferry Road, Suite 1200

Atlanta, Georgia 30339

Attn: Loan Administration

Telecopier:  770-435-2262

Telephone:  770-435-3800




     If to any other Lender:


To
such Lender’s address or telecopy number as set forth in the 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 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, 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 Articles II. shall be effective only when actually received. None of the
Administrative Agent, the Issuing Bank or any Lender shall incur any liability to the Borrower (nor
shall the Administrative Agent incur any liability to 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.




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 expenses and travel expenses relating to closing), and the consummation of
the transactions contemplated thereby, including the reasonable fees and disbursements of counsel
to the Administrative Agent and costs and expenses in connection with the use of IntraLinks, Inc.,
SyndTrak or other similar



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information transmission systems in connection with the Loan Documents, (b) to pay or reimburse the
Issuing Bank all out-of-pocket costs and expenses incurred by the Issuing Bank in connection with
any demand for payment thereunder, (c) to pay or reimburse the Administrative Agent, the Issuing
Bank and the Lenders for all their 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, (d) 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 (e) to the extent not already covered by any
of the preceding subsections, to pay 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.(f) or 10.1.(g),
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.




Section 12.3. Stamp, Intangible and Recording Taxes.




     The Borrower shall 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 Administrative Agent, each
Lender, the Issuing Bank and each Participant is hereby authorized by the Borrower, 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 a Lender, the Issuing
Bank or a Participant subject to receipt of the prior written consent of the Administrative Agent
and 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, such Participant
or any affiliate of the Administrative Agent, the Issuing Bank or such Lender, 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.



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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, THE NOTES, OR
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 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 FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY STATE
COURT LOCATED IN THE BOROUGH OF MANHATTAN OF 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, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE
LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR TO ANY
MATTER ARISING HEREFROM OR THEREFROM. 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 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 DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.



Section 12.6. Successors and Assigns.




     (a) Generally. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted assigns, except
that the Borrower may not assign or otherwise transfer any of is rights or obligations under this
Agreement



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without the prior written consent of all Lenders (and any such assignment or transfer to which all
of the Lenders have not consented shall be null and void).




     (b) Participations. Any Lender may at any time grant to an affiliate of such Lender,
or one or more banks or other financial institutions (each a “Participant”) participating interests
in its Commitment or the Obligations owing to such Lender. Except as otherwise provided in Section
12.4. or as otherwise expressly stated herein, no Participant shall have any rights or benefits
under this Agreement or any other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided, however, such
Lender may agree with the Participant that it will not, without the consent of the Participant,
agree to (i) increase such Lender’s Commitment, (ii) extend the date fixed for the payment of
principal on the Loans or portions thereof owing to such Lender, (iii) reduce the rate at which
interest is payable thereon, or (iv) release any Guarantor from its obligations under the Guaranty
except as contemplated by Section 7.11.(c). An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance with this subsection (b).



     (c) Assignments. Any Lender may with the prior written consent of the Administrative
Agent and, so long as no Default or Event of Default exists, the Borrower (which consent, in each
case, shall not be unreasonably withheld) at any time assign to one or more Eligible Assignees
(each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under
this Agreement and the Notes; provided, however, that (i) no such consent of the Borrower or the
Administrative Agent shall be required in the case of any assignment to another Lender or to any
affiliate of a Lender, (ii) any partial assignment shall be in an amount at least equal to
$5,000,000 and integral multiples of $1,000,000 in excess thereof and after giving effect to such
assignment the assigning Lender retains a Commitment, or if the Commitments have been terminated,
holds Notes having an aggregate outstanding principal balance, of at least $5,000,000 and integral
multiples of $1,000,000 in excess thereof, (iii) if the assigning Lender (or its Affiliate) is a
Specified Derivatives Provider and if after giving effect to such assignment such Lender will hold
no further Loans or Commitments under this Agreement, such Lender shall undertake such assignment
only contemporaneously with an assignment by such Lender (or its Affiliate, as the case may be) of
all of its Specified Derivatives Contracts to the Assignee or another Lender (or Affiliate thereof)
and (iv) each such assignment shall be effected by means of an Assignment and Assumption Agreement.
Upon execution and delivery of such instrument and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this Agreement and shall have all
the rights and obligations of a Lender with a Commitment and/or Loans, as the case may be, as set
forth in such Assignment and Assumption Agreement, and the transferor Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to this subsection (c), the
transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so
the new Notes are issued to the Assignee and such transferor Lender, as appropriate, and shall
update Schedule I attached hereto. In connection with any such assignment, the transferor Lender
shall pay to the Administrative Agent an administrative fee for processing such assignment in the
amount of $4,500.00. Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the Borrower, or any of its
respective affiliates or Subsidiaries.



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



     (e) Federal Reserve Bank Assignments. In addition to the assignments and
participations permitted under the foregoing provisions of the Section, and without the need to
comply with any of the formal or procedural requirements of this Section, any Lender may at any
time and from time to time, pledge and assign all or any portion of its rights under all or any of
the Loan Documents to a Federal Reserve Bank; provided that no such pledge of assignment shall
release such Lender from its obligations thereunder. No such pledge or assignment shall release
the assigning Lender from its obligations hereunder.



     (f) Information to Assignee, Etc. A Lender may furnish any information concerning the
Borrower, any Subsidiary or any other Loan Party in the possession of such Lender from time to time
to Assignees and Participants (including prospective Assignees and Participants).



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 in 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 or any other Loan Party of any
terms of this Agreement or such other Loan Document may be waived, and (iv) the existence 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 Requisite Lender Consents. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing, and signed by the Requisite Lenders (which must include
Wells Fargo at all times during which Wells Fargo is acting as Administrative Agent and the
Commitment Percentage of Wells Fargo is not less than ten percent (10.0%)) amend the financial
covenants set forth in Section 9.1. or any of the definitions related thereto or waive any Default
or Event of Default resulting from a breach of any of the financial covenants set forth in Section
9.1.



     (c) Consent of Affected Lenders. Notwithstanding the foregoing but subject to Section
3.10.(a), no amendment, waiver or consent shall, unless in writing, and signed by all of the
Lenders directly 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.) or subject the Lenders to any
additional obligations except for any increases contemplated under Section 2.14.



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     (ii) reduce the principal of, or interest rates that have accrued or 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) 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 in accordance with Section 2.11.;




     (v) amend or otherwise modify the provisions of Section 3.2.;




     (vi) change the definitions of Commitment Percentage;




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




     (viii) 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;




     (vix) release any Guarantor from its obligations under the Guaranty except as
contemplated by Section 7.11.(c);




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




     (xi) amend, or waive the Borrower’s compliance with, Section 2.15.; or




     (xii) amend, or waive a Default or Event of Default under Section 10.1.(m).



     (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 2.2. 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 2.3.
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



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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.



Section 12.9. Confidentiality.




     Except as otherwise provided by Applicable Law, the Administrative Agent, the Issuing Bank and
each Lender shall utilize all information obtained pursuant to the requirements of this Agreement
that has been designated, or deemed to be, “Private Information” in accordance with Section 8.6. 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 any
of their employees, any of their respective affiliates, and any of their affiliates’ respective
employees (provided any such Person shall agree to keep such information confidential in accordance
with the terms of this Section); (b) as reasonably requested by any bona fide Assignee, Participant
or other transferee in connection with the contemplated transfer of any Commitment or
participations therein as permitted hereunder (provided they shall agree to keep such information
confidential in accordance with the terms of this Section or on substantially similar terms); (c)
as required or requested by any Governmental Authority or representative thereof or pursuant to
legal process or in connection with any legal proceedings; (d) to the Administrative Agent’s,
Issuing Bank’s or such Lender’s respective independent auditors and other professional advisors
(provided they shall be notified of the confidential nature of the information and are either
subject to customary confidentiality obligations of professional practice or who agree to keep such
information confidential in accordance with the terms of this Section or on substantially similar
terms); (e) if an Event of Default exists, to any other Person, in connection with the exercise by
the Administrative Agent, the Issuing Bank or the Lenders of rights hereunder or under any of the
other Loan Documents; (f) upon the Borrower’s prior consent (which consent shall not be
unreasonably withheld), to any contractual counterparties to any swap or similar hedging agreement
or any rating agency; and (g) to the extent such information (x) becomes publicly available other
than as a result of a breach of this Section or (y) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower or
any Affiliate. 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. Further, notwithstanding anything to the contrary set forth herein or in any
other written or oral understanding or agreement to which the parties hereto are parties or by
which they are bound, the parties hereto acknowledge and agree that (i) any obligations of
confidentiality contained herein and therein do not apply and have not applied from the
commencement of discussions between the parties to the tax treatment and tax structure of the
transactions contemplated by the Loan Documents (and any related transactions or arrangements), and
(ii) each party (and each of its employees, representatives, or other agents) may disclose to any
and all Persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by the Loan Documents and all materials of any kind



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(including opinions or other tax analyses) that are provided to such party relating to such tax
treatment and tax structure, all within the meaning of Treasury Regulations Section 1.6011-4;
provided, however, that with respect to any document or similar item that in either
case contains information concerning the tax treatment or tax structure of the transactions
contemplated by the Loan Documents as well as other information, this sentence shall only apply to
such portions of the document or similar item that relate to the tax treatment or tax structure of
the transactions contemplated by the Loan Documents; provided, further,
however, to the extent not inconsistent with the immediately preceding clause (ii), the
parties hereto do not intend anything contained in this sentence to be a waiver of the privilege
each has to maintain, in its sole discretion, the confidentiality of a communication with its
attorney or a confidential communication with a federally authorized tax practitioner under Section
7525 of the Internal Revenue Code relating to the transactions contemplated by the Loan Documents.




Section 12.10. Indemnification.




     (a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the
Administrative Agent, each of the Lenders and the Issuing Bank, any affiliate of the Administrative
Agent, each of the Lenders and the Issuing Bank, 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, damages, liabilities, deficiencies, judgments or expenses of every kind and nature
(including, without limitation, amounts paid in settlement, court costs and the reasonable fees and
disbursements of counsel incurred in connection with any litigation, investigation, claim or
proceeding or any advice rendered in connection therewith, but excluding losses, costs, claims,
damages, liabilities, deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.11. 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)
that constitute gross negligence or willful misconduct; (ix) any civil penalty or fine assessed by
OFAC against, and all reasonable costs and expenses (including counsel fees and disbursements)
inclurred in connection with the 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 Subsidiary that
violate a sanction enforced by OFAC; (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



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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. If indemnification is to be sought hereunder
by an Indemnified Party, then such Indemnified Party shall notify the Borrower of the commencement
of any Indemnity Proceeding; provided, however, that the failure to so notify the Borrower shall
not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to
this Section 12.10.



     (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
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 (i) if 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).



     (f) If and to the extent that the obligations of the Borrower hereunder 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 hereunder 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.




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Section 12.11. Termination; Survival.




     At such time as (a) all of the Commitments have been terminated, (b) all Letters of Credit
have terminated (c) none of the Lenders or the Swingline Lender is obligated any longer under this
Agreement to make any Loans and (c) all Obligations (other than obligations which survive as
provided in the following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Administrative Agent, the Issuing Bank and the Lenders are
entitled under the provisions of Sections 3.11., 4.1., 4.4., 11.7., 12.2. and 12.10. and any other
provision of this Agreement and the other Loan Documents, and the provisions of Section 12.5.,
shall continue in full force and effect and shall protect the Administrative 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.



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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 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.



[Signatures on Following Pages]





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     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.



	 	 	 	 	 
	 	BORROWER:




NATIONAL RETAIL PROPERTIES, INC.

 	 
	 	By:  	/s/ Kevin B. Habicht
 	 
	 	 	Name:  	Kevin B. Habicht 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer

Assistant Secretary, Treasurer 	 
	 



STATE OF GEORGIA




COUNTY OF FULTON





     BEFORE ME, a Notary Public in and for said County, personally appeared Kevin B. Habicht, known
to me to be a person who, as Executive Vice President, Chief Financial Officer, Assistant
Secretary, Treasurer of National Retail Properties, Inc., the entity which executed the foregoing
Credit Agreement, signed the same, and acknowledged to me that he did so sign said instrument in
the name and upon behalf of said corporation as an officer of said corporation.



     IN TESTIMONY WHEREOF, I have subscribed my name, and affixed my official seal, as of November
3, 2009.



	 	 	 	 	 
	 	 	 
	 	     /s/ Christine Gardner Price
 	 
	 	Notary Public
 	 
	 	My Commission Expires:  June 14, 2012



[NOTARIAL SEAL] 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




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

 	 
	 	By:  	/s/ Walter R. Gillikin
 	 
	 	 	Name:  	Walter R. Gillikin  	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Michael W. Edwards
 	 
	 	 	Name:  	Michael W. Edwards 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Wayne Robertson
 	 
	 	 	Name:  	Wayne Robertson  	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Documentation Agent and Lender

 	 
	 	By:  	/s/ Jeffrey S. Geifman
 	 
	 	 	Name:  	Jeffrey S. Geifman  	 
	 	 	Title:  	Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ David Cole
 	 
	 	 	Name:  	David Cole 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	By:  	/s/ Brendan M. Poe
 	 
	 	 	Name:  	Brendan M. Poe 	 
	 	 	Title:  	Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC.

 	 
	 	By:  	/s/ David Bouton
 	 
	 	 	Name:  	David Bouton 	 
	 	 	Title:  	Managing Director 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	BRANCH BANKING & TRUST COMPANY

 	 
	 	By:  	/s/ Bill Buchholz
 	 
	 	 	Name:  	Bill Buchholz 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	CHEVY CHASE BANK,
 a division of Capital One N.A.

 	 
	 	By:  	/s/ Michael J. Sleece
 	 
	 	 	Name:  	Michael J. Sleece  	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB

 	 
	 	By:  	/s/ James M. Armstrong
 	 
	 	 	Name:  	James M. Armstrong  	 
	 	 	Title:  	Vice President 	 
	 



[Signatures Continued on Next Page]




 









 








Signature Page to Credit Agreement dated as of

November 3, 2009 with National Retail Properties




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL
ASSOCIATION,
 as issuer of Existing Letters of Credit

 	 
	 	By:  	/s/ Walter R. Gillikin
 	 
	 	 	Name:  	Walter R. Gillikin  	 
	 	 	Title:  	Senior Vice President 	 
	 





Except
for the Form of Guaranty attached hereto, the
schedules and exhibits to the Credit Agreement have been omitted from
this filing.  The registrant agrees to furnish a copy of such omitted
schedules and exhibits to the Commission upon request.



 











 





EXHIBIT B




FORM OF GUARANTY



     THIS GUARANTY dated as of November 3, 2009 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 November 3, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
NATIONAL RETAIL PROPERTIES, INC. (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, the Swingline Lender 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 Guarantied Parties 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, each Guarantor and the other Subsidiaries 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 Guarantied Parties through their collective efforts;



     WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Guarantied Parties’ 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 Guarantied Parties 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 Guarantied Party 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, the Swingline Loans, all
Reimbursement Obligations, and the payment of all interest, fees, charges, reasonable attorneys’
fees and other amounts payable to any Guarantied Party 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;



     (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;



- 2 -









 





     (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 Agent or any Lender;



     (k)   any change in the 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 and performance 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 Credit 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.



     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.



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     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 one of
them is 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 Guarantied Parties such additional
amount as will result in the receipt by the Guarantied Parties 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



- 4 -









 





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 and 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, or such Participant or any affiliate of the
Administrative Agent, the Issuing Bank, or such Lender 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 such 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 any 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.



     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 of the Administrative Agent nor any other Guarantied Party shall have any duty
whatsoever to advise any Guarantor of information regarding such circumstances or risks.



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     Section 16. Governing Law. THIS GUARANTY 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 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 OR AMONG 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 OR ANY OTHER LOAN DOCUMENT OR BY REASON OF
ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG ANY GUARANTOR, THE
ADMINISTRATIVE AGENT OR ANY OTHER GUARANTIED PARTY OF ANY KIND OR NATURE RELATING TO ANY OF THE
LOAN DOCUMENTS.



     (b)   EACH GUARANTOR, AND EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES BY
ACCEPTING THE BENEFITS HEREOF, HEREBY AGREES THAT THE FEDERAL DISTRICT COURT LOCATED IN THE
SOUTHERN DISTRICT OF NEW YORK OR ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN OF 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, THE LOANS, THE LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT
OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. 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 DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS GUARANTY.



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     Section 18. Loan Accounts. The Administrative Agent, 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 the Guarantied Obligations or otherwise, the entries in such
books and accounts shall be deemed conclusive evidence of the amounts and other matters set forth
herein, absent manifest error. The failure of the Administrative Agent, any Lender or the
Swingline 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 in accordance with
its terms.



     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 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.



     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 1:00 p.m. Pacific 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 the address for notices provided for in the Credit Agreement, as
applicable, or (c) as to each such party



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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. 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 the Credit Agreement or financed thereby.



     Section 29. 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 30. Definitions. (a) For the purposes of this Guaranty:



     “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]






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



	 	 	 	 	 	 	 
	 	 	[GUARANTOR]
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices for all Guarantors:
	 
	 	 	 	 	 	 
	 	 	c/o National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: Chief Financial Officer

Telecopy Number:  (407) 650-1044

Telephone Number:  (407) 650-1230
	 
	 	 	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 	 	 
	 	 	c/o National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: General Counsel

Telecopy Number:  (321) 206-2138

Telephone Number:  (407) 650-1115






 









 






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 November 3, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
NATIONAL RETAIL PROPERTIES, INC. (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 Swingline Lender and the Issuing Bank, each individually a
“Guarantied Party” and collectively, the “Guarantied Parties”).



     WHEREAS, pursuant to the Credit Agreement, the Guarantied Parties 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 other Subsidiaries 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 Guarantied Parties through their collective efforts;



WHEREAS, New Guarantor acknowledges that it will receive direct and indirect benefits from the
Guarantied Parties’ 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
Guarantied Parties on the terms and conditions contained herein; and




          WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to the
Guarantied Parties’ 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 that certain Guaranty dated November 3, 2009 (as amended, supplemented, restated
or otherwise modified from time to time, the “Guaranty”) made by each of the “Guarantors” party
thereto in favor of the Administrative Agent for the benefit of the Guarantied Parties and assumes
all obligations of a “Guarantor” thereunder and agrees to be bound thereby, 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:



     (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]







I-2 









 







     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:
	 
	 	 	 	 	 	 
	 	 	National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: Chief Financial Officer

Telecopy Number:  (407) 650-1044

Telephone Number:  (407) 650-1230
	 
	 	 	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 	 	 
	 	 	National Retail Properties, Inc.

450 South Orange Avenue, Suite 900

Orlando, Florida 32801

Attention: General Counsel

Telecopy Number:  (321) 206-2138

Telephone Number:  (407) 650-1115






	 	 	 	 
	Accepted:



WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




I-3