Exhibit 10.2


 




 





Published CUSIP
Number:         


 


 


CREDIT AGREEMENT


 


Dated as of April 24,
2009


 


among


 


GOVERNMENT
PROPERTIES INCOME TRUST, a Maryland real estate investment trust


and the other
Borrowing Base Entities (as defined herein)


collectively, as
the Borrowers,


 


BANK OF AMERICA,
N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer, and


 


The Other Lenders
Party Hereto


 


BANC OF AMERICA
SECURITIES LLC


as Joint Lead
Arranger and Joint Book Manager,


 


WELLS FARGO BANK,
N.A.,


as Joint Lead
Arranger, Joint Book Manager and Syndication Agent,


 


US BANK NATIONAL
ASSOCIATION,


as Documentation
Agent, and


 


ROYAL BANK OF
CANADA,


 as Documentation Agent


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  5

  
	
   

  	
  1.01

  	
   

  	
   

  	
  5

  
	
   

  	
  1.02

  	
  Other Interpretive Provisions.

  	
   

  	
  31

  
	
   

  	
  1.03

  	
  Accounting Terms.

  	
   

  	
  31

  
	
   

  	
  1.04

  	
  Rounding.

  	
   

  	
  32

  
	
   

  	
  1.05

  	
  Times of Day.

  	
   

  	
  32

  
	
   

  	
  1.06

  	
  Letter of Credit Amounts.

  	
   

  	
  32

  
	
   

  	
  1.07

  	
  Currency Equivalents Generally.

  	
   

  	
  33

  
	
   

  	
  1.08

  	
  Joint and Several Liability of the Borrowers.

  	
   

  	
  33

  
	
   

  	
  1.09

  	
  Appointment of Principal Borrower as Agent for Borrowers.

  	
   

  	
  34

  
	
   

  	
  1.10

  	
  Addition/Removal of Borrowing Base Properties.

  	
   

  	
  34

  
	
  ARTICLE
  II THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
  35

  
	
   

  	
  2.01

  	
  The Loans.

  	
   

  	
  35

  
	
   

  	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans.

  	
   

  	
  36

  
	
   

  	
  2.03

  	
  Letters of Credit.

  	
   

  	
  37

  
	
   

  	
  2.04

  	
  Swing Line Loans.

  	
   

  	
  43

  
	
   

  	
  2.05

  	
  Prepayments.

  	
   

  	
  45

  
	
   

  	
  2.06

  	
  Termination or Reduction of Commitments.

  	
   

  	
  47

  
	
   

  	
  2.07

  	
  Repayment of Loans.

  	
   

  	
  47

  
	
   

  	
  2.08

  	
  Interest.

  	
   

  	
  47

  
	
   

  	
  2.09

  	
  Fees.

  	
   

  	
  48

  
	
   

  	
  2.10

  	
  Computation of Interest and Fees;
  Retroactive Adjustments of Applicable Rate.

  	
   

  	
  49

  
	
   

  	
  2.11

  	
  Evidence of Debt.

  	
   

  	
  49

  
	
   

  	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback.

  	
   

  	
  49

  
	
   

  	
  2.13

  	
  Sharing of Payments by Lenders.

  	
   

  	
  51

  
	
   

  	
  2.14

  	
  Maturity Date; Extended Maturity Date.

  	
   

  	
  52

  
	
   

  	
  2.15

  	
  Increase in Facility.

  	
   

  	
  53

  
	
   

  	
  2.16

  	
  Conversion of Term A Facility Amounts into Revolving Credit Facility
  Commitments/Outstandings.

  	
   

  	
  54

  
	
  ARTICLE
  III TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  55

  
	
   

  	
  3.01

  	
  Taxes.

  	
   

  	
  55

  
	
   

  	
  3.02

  	
  Illegality.

  	
   

  	
  57

  
	
   

  	
  3.03

  	
  Inability to Determine Rates.

  	
   

  	
  58

  
	
   

  	
  3.04

  	
  Increased Costs; Reserves on Eurodollar Rate Loans.

  	
   

  	
  58

  
	
   

  	
  3.05

  	
  Compensation for Losses.

  	
   

  	
  59

  
	
   

  	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders.

  	
   

  	
  60

  
	
   

  	
  3.07

  	
  Survival.

  	
   

  	
  60

  
	
  ARTICLE
  IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
  60

  
	
   

  	
  4.01

  	
  Conditions of Initial Credit Extension.

  	
   

  	
  60

  
	
   

  	
  4.02

  	
  Conditions to all Credit Extensions.

  	
   

  	
  63

  
	
  ARTICLE
  V REPRESENTATIONS AND WARRANTIES

  	
   

  	
  64

  
	
   

  	
  5.01

  	
  Existence, Qualification and Power.

  	
   

  	
  64

  
	
   

  	
  5.02

  	
  Authorization; No Contravention.

  	
   

  	
  64

  
	
   

  	
  5.03

  	
  Governmental Authorization; Other Consents.

  	
   

  	
  64

  
	
   

  	
  5.04

  	
  Binding Effect.

  	
   

  	
  64

  
	
   

  	
  5.05

  	
  Financial Statements; No Material Adverse Effect.

  	
   

  	
  65

  
	
   

  	
  5.06

  	
  Litigation.

  	
   

  	
  65

  
	
   

  	
  5.07

  	
  No Default.

  	
   

  	
  65

  
	
   

  	
  5.08

  	
  Ownership of Property; Liens; Investments.

  	
   

  	
  65

  
	
   

  	
  5.09

  	
  Environmental Compliance.

  	
   

  	
  66

  
	
   

  	
  5.10

  	
  Insurance.

  	
   

  	
  67

  
	
   

  	
  5.11

  	
  Taxes.

  	
   

  	
  67

  
						



 

















 


	
   

  	
  5.12

  	
  ERISA Compliance.

  	
   

  	
  67

  
	
   

  	
  5.13

  	
  Subsidiaries; Equity Interests; Borrowers.

  	
   

  	
  68

  
	
   

  	
  5.14

  	
  Margin Regulations; Investment Company Act.

  	
   

  	
  68

  
	
   

  	
  5.15

  	
  Disclosure.

  	
   

  	
  68

  
	
   

  	
  5.16

  	
  Compliance with Laws.

  	
   

  	
  69

  
	
   

  	
  5.17

  	
  Intellectual Property; Licenses, Etc.

  	
   

  	
  69

  
	
   

  	
  5.18

  	
  Solvency.

  	
   

  	
  69

  
	
   

  	
  5.19

  	
  Casualty, Etc.

  	
   

  	
  69

  
	
   

  	
  5.20

  	
  Labor Matters.

  	
   

  	
  69

  
	
   

  	
  5.21

  	
  Collateral Documents.

  	
   

  	
  69

  
	
   

  	
  5.22

  	
  REIT Status.

  	
   

  	
  69

  
	
   

  	
  5.23

  	
  Borrowing Base Properties.

  	
   

  	
  70

  
	
  ARTICLE
  VI AFFIRMATIVE COVENANTS

  	
   

  	
  70

  
	
   

  	
  6.01

  	
  Financial Statements.

  	
   

  	
  70

  
	
   

  	
  6.02

  	
  Certificates; Other Information.

  	
   

  	
  71

  
	
   

  	
  6.03

  	
  Notices.

  	
   

  	
  73

  
	
   

  	
  6.04

  	
  Payment of Obligations.

  	
   

  	
  73

  
	
   

  	
  6.05

  	
  Preservation of Existence, Etc.

  	
   

  	
  74

  
	
   

  	
  6.06

  	
  Maintenance of Properties.

  	
   

  	
  74

  
	
   

  	
  6.07

  	
  Maintenance of Insurance.

  	
   

  	
  74

  
	
   

  	
  6.08

  	
  Compliance with Laws.

  	
   

  	
  74

  
	
   

  	
  6.09

  	
  Books and Records.

  	
   

  	
  74

  
	
   

  	
  6.10

  	
  Inspection Rights.

  	
   

  	
  75

  
	
   

  	
  6.11

  	
  Use of Proceeds.

  	
   

  	
  75

  
	
   

  	
  6.12

  	
  Joinder of Additional Borrowers.

  	
   

  	
  75

  
	
   

  	
  6.13

  	
  Compliance with Environmental Laws.

  	
   

  	
  75

  
	
   

  	
  6.14

  	
  Further Assurances.

  	
   

  	
  76

  
	
   

  	
  6.15

  	
  Compliance with Terms of Leaseholds; Approved Ground Lease Matters.

  	
   

  	
  76

  
	
   

  	
  6.16

  	
  Lien Searches.

  	
   

  	
  78

  
	
   

  	
  6.17

  	
  Material Contracts.

  	
   

  	
  78

  
	
   

  	
  6.18

  	
  Collateral Matters.

  	
   

  	
  78

  
	
   

  	
  6.19

  	
  Insurance.

  	
   

  	
  79

  
	
   

  	
  6.20

  	
  Updated Appraisals.

  	
   

  	
  81

  
	
  ARTICLE
  VII NEGATIVE COVENANTS

  	
   

  	
  82

  
	
   

  	
  7.01

  	
  Liens.

  	
   

  	
  82

  
	
   

  	
  7.02

  	
  Indebtedness.

  	
   

  	
  83

  
	
   

  	
  7.03

  	
  Investments.

  	
   

  	
  83

  
	
   

  	
  7.04

  	
  Fundamental Changes.

  	
   

  	
  84

  
	
   

  	
  7.05

  	
  Dispositions.

  	
   

  	
  85

  
	
   

  	
  7.06

  	
  Restricted Payments.

  	
   

  	
  85

  
	
   

  	
  7.07

  	
  Change in Nature of Business.

  	
   

  	
  85

  
	
   

  	
  7.08

  	
  Transactions with Affiliates.

  	
   

  	
  86

  
	
   

  	
  7.09

  	
  Burdensome Agreements.

  	
   

  	
  86

  
	
   

  	
  7.10

  	
  Use of Proceeds.

  	
   

  	
  86

  
	
   

  	
  7.11

  	
  Financial Covenants.

  	
   

  	
  86

  
	
   

  	
  7.12

  	
  Amendments of Organization Documents.

  	
   

  	
  87

  
	
   

  	
  7.13

  	
  Accounting Changes.

  	
   

  	
  87

  
	
   

  	
  7.14

  	
  Ownership of Subsidiaries.

  	
   

  	
  87

  
	
   

  	
  7.15

  	
  Leases.

  	
   

  	
  87

  
	
   

  	
  7.16

  	
  Sale Leasebacks.

  	
   

  	
  87

  
	
   

  	
  7.17

  	
  Intentionally Omitted.

  	
   

  	
  87

  
	
   

  	
  7.18

  	
  Additional Borrowing Base Property Matters.

  	
   

  	
  87

  
	
   

  	
  7.19

  	
  Insurance Proceeds and Condemnation Awards.

  	
   

  	
  88

  
	
  ARTICLE
  VIII EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  89

  
	
   

  	
  8.01

  	
  Events of Default.

  	
   

  	
  89

  
	
   

  	
  8.02

  	
  Remedies upon Event of Default.

  	
   

  	
  91

  



 


ii

















 


	
   

  	
  8.03

  	
  Application of Funds.

  	
   

  	
  91

  
	
  ARTICLE
  IX ADMINISTRATIVE AGENT

  	
   

  	
  92

  
	
   

  	
  9.01

  	
  Appointment and Authority.

  	
   

  	
  92

  
	
   

  	
  9.02

  	
  Rights as a Lender.

  	
   

  	
  92

  
	
   

  	
  9.03

  	
  Exculpatory Provisions.

  	
   

  	
  93

  
	
   

  	
  9.04

  	
  Reliance by Administrative Agent.

  	
   

  	
  93

  
	
   

  	
  9.05

  	
  Delegation of Duties.

  	
   

  	
  94

  
	
   

  	
  9.06

  	
  Resignation of Administrative Agent.

  	
   

  	
  94

  
	
   

  	
  9.07

  	
  Non-Reliance on Administrative Agent and Other Lenders.

  	
   

  	
  95

  
	
   

  	
  9.08

  	
  No Other Duties, Etc.

  	
   

  	
  95

  
	
   

  	
  9.09

  	
  Administrative Agent May File Proofs of Claim.

  	
   

  	
  95

  
	
   

  	
  9.10

  	
  Collateral and Guaranty Matters.

  	
   

  	
  96

  
	
   

  	
  9.11

  	
  Secured Cash Management Agreements and Secured Hedge Agreements.

  	
   

  	
  96

  
	
  ARTICLE
  X MISCELLANENOUS

  	
   

  	
  96

  
	
   

  	
  10.01

  	
  Amendments, Etc.

  	
   

  	
  96

  
	
   

  	
  10.02

  	
  Notices; Effectiveness; Electronic Communications.

  	
   

  	
  98

  
	
   

  	
  10.03

  	
  No Waiver; Cumulative Remedies; Enforcement.

  	
   

  	
  99

  
	
   

  	
  10.04

  	
  Expenses; Indemnity; Damage Waiver.

  	
   

  	
  100

  
	
   

  	
  10.05

  	
  Payments Set Aside.

  	
   

  	
  101

  
	
   

  	
  10.06

  	
  Successors and Assigns.

  	
   

  	
  101

  
	
   

  	
  10.07

  	
  Treatment of Certain Information; Confidentiality.

  	
   

  	
  104

  
	
   

  	
  10.08

  	
  Right of Setoff.

  	
   

  	
  105

  
	
   

  	
  10.09

  	
  Interest Rate Limitation.

  	
   

  	
  105

  
	
   

  	
  10.10

  	
  Counterparts; Integration; Effectiveness.

  	
   

  	
  105

  
	
   

  	
  10.11

  	
  Survival of Representations and Warranties.

  	
   

  	
  106

  
	
   

  	
  10.12

  	
  Severability.

  	
   

  	
  106

  
	
   

  	
  10.13

  	
  Replacement of Lenders.

  	
   

  	
  106

  
	
   

  	
  10.14

  	
  Governing Law; Jurisdiction; Etc.

  	
   

  	
  106

  
	
   

  	
  10.15

  	
  Waiver of Jury Trial.

  	
   

  	
  107

  
	
   

  	
  10.16

  	
  No Advisory or Fiduciary Responsibility.

  	
   

  	
  107

  
	
   

  	
  10.17

  	
  Electronic Execution of Assignments and Certain Other Documents.

  	
   

  	
  108

  
	
   

  	
  10.18

  	
  USA PATRIOT Act.

  	
   

  	
  108

  
	
   

  	
  10.19

  	
  Time of the Essence.

  	
   

  	
  108

  
	
   

  	
  10.20

  	
  California Judicial Review.

  	
   

  	
  108

  
	
   

  	
  10.21

  	
  LIMITATION OF LIABILITY OF TRUSTEE.

  	
   

  	
  108

  
	
   

  	
  10.22

  	
  ENTIRE AGREEMENT.

  	
   

  	
  109

  
	
   

  	
  10.23

  	
  SNDA Matters.

  	
   

  	
  109

  
	
   

  	
  10.24

  	
  Sale of 9173 Sky Park Court.

  	
   

  	
  109

  
	
   

  	
  10.25

  	
  New York Mortgage Matters.

  	
   

  	
  109

  
	
   

  	
  (a)

  	
   

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SIGNATURES

  	
   

  	
  S-1

  



 


iii

















 


	
  SCHEDULES

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01(a)

  	
  Borrowing Base
  Properties; Borrowing Base Leases; Borrowing Base Entities

  	
   

  	
   

  
	
  2.01

  	
  Commitments and
  Applicable Percentages

  	
   

  	
   

  
	
  5.03

  	
  Governmental
  Authorizations

  	
   

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  	
   

  
	
  5.08(b)

  	
  Existing Liens

  	
   

  	
   

  
	
  5.08(c)

  	
  Existing Investments

  	
   

  	
   

  
	
  5.09

  	
  Environmental Matters

  	
   

  	
   

  
	
  5.10

  	
  Insurance Coverage

  	
   

  	
   

  
	
  5.13(a)

  	
  Capital Structure of
  Principal Borrower

  	
   

  	
   

  
	
  5.13(b)

  	
  Subsidiaries, Borrowers

  	
   

  	
   

  
	
  7.08

  	
  Transactions With
  Affiliates

  	
   

  	
   

  
	
  10.02

  	
  Administrative Agent’s
  Office, Certain Addresses for Notices

  	
   

  	
   

  



 


	
  EXHIBITS

  
	
   

  	
   

  	
   

  	
   

  
	
  Form of

  	
   

  	
   

  	
   

  
	
  A

  	
  Committed Loan Notice

  	
   

  	
   

  
	
  B

  	
  Swing Line Loan Notice

  	
   

  	
   

  
	
  C-1

  	
  Term A Note

  	
   

  	
   

  
	
  C-2

  	
  Revolving Credit Note

  	
   

  	
   

  
	
  D

  	
  Compliance Certificate

  	
   

  	
   

  
	
  E-1

  	
  Assignment and
  Assumption

  	
   

  	
   

  
	
  E-2

  	
  Administrative
  Questionnaire

  	
   

  	
   

  
	
  F-1

  	
  Opinion Matters —
  Counsel to Borrowers

  	
   

  	
   

  
	
  F-2

  	
  Opinion Matters — Local
  Counsel to Borrowers

  	
   

  	
   

  
	
  G

  	
  Pledge Agreement

  	
   

  	
   

  
	
  H

  	
  Mortgage

  	
   

  	
   

  
	
  I

  	
  Joinder Agreement (Borrower Joinder)

  	
   

  	
   

  



 


iv

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (as
the same may be amended, restated, supplemented or modified from time to time,
the “Agreement”)
is entered into as of April 24, 2009, among GOVERNMENT PROPERTIES INCOME
TRUST, a Maryland real estate investment trust (the “Principal Borrower”), GOVERNMENT
PROPERTIES INCOME TRUST LLC, a Delaware limited liability company
(collectively, with the Principal Borrower and each other Subsidiary which from
time to time qualifies as a Borrowing Base Entity hereunder and who has
executed a joinder to this Agreement pursuant to Section 6.12, the “Borrowers”
and each a “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.


 


PRELIMINARY
STATEMENTS:


 


The Borrowers have
requested that the Lenders provide a term loan facility and a revolving credit
facility, and the Lenders have indicated their willingness to lend and the L/C
Issuer has indicated its willingness to issue letters of credit, in each case,
on the terms and subject to the conditions set forth herein.


 


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


 


ARTICLE I


 


DEFINITIONS AND
ACCOUNTING TERMS


 


1.01        Defined Terms.


 


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


 


“Adjusted Equity
Buyback Amount” means, for any fiscal year, an amount equal to (a) the
total amount spent by the Consolidated Parties for the purpose of repurchasing
their own Equity Interests (whether common or preferred and excluding any
amounts paid to Consolidated Parties) during such fiscal year, less (b) an
amount equal to the lesser of (i) $10,000,000 and (ii) an amount
equal to the net proceeds from capital asset sales paid to the Consolidated
Parties during such period that have not been directly reinvested by such
Consolidated Parties.


 


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


 


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


 


“Administrative
Questionnaire” means an Administrative Questionnaire in
substantially the form of Exhibit E-2 or any other form approved by
the Administrative Agent.


 


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


 


“Aggregate
Commitments” means, as of any date of determination, the Commitments
of all the Lenders.


 


“Aggregate Credit
Exposure” means, at any time, in respect of (a) the Term A
Facility, the aggregate amount of the Term A Loans outstanding at such
time and (b) in respect of the Revolving Credit Facility, the sum of (i) the
unused portion of the Revolving Credit Facility at such time and (ii) the
Total Revolving Credit Outstandings at such time and “Aggregate Credit
Exposures” means at any time the aggregate of (a) and (b).


 

















 


“Aggregate Facility
Pro Rata Share” means, with respect to any Lender as of any date of
determination, a percentage equal to such Lender’s pro rata share of the
then-existing Aggregate Credit Exposures.


 


“Aggregate Revolving
Commitments” means the sum of each of the Revolving Credit Commitments of
all the Lenders, as adjusted from time to time in accordance with the terms
hereof.  The initial amount of the
Aggregate Revolving Commitments in effect on the Closing Date is FIFTY MILLION
DOLLARS ($50,000,000.00).


 


“Agreement”
has the meaning set forth in the caption hereof.


 


“Applicable Percentage”
means (a) in respect of the Term A Facility, with respect to any
Term A Lender at any time, the percentage (carried out to the ninth
decimal place) of the Term A Facility represented by (i) on or prior to the Closing Date, such
Term A Lender’s Term A Commitment at such time and (ii) thereafter,
the principal amount of such Term A Lender’s Term A Loans at such
time and (b) in respect of the
Revolving Credit Facility, with respect to any Revolving Credit Lender at any
time, the percentage (carried out to the ninth decimal place) of the Revolving
Credit Facility represented by such Revolving Credit Lender’s Revolving Credit
Commitment at such time.  If the
commitment of each Revolving Credit
Lender to make Revolving Credit
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have
expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based on the
Applicable Percentage of such Revolving
Credit Lender in respect of the
Revolving Credit Facility most recently in effect, giving effect to any
subsequent assignments.  The initial
Applicable Percentage of each Lender in respect of each Facility is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.


 


“Applicable Rate”
means (a) from the Closing Date to
the date on which the Administrative Agent receives a Compliance Certificate
pursuant to Section 6.02(b) for the fiscal quarter ending March 31,
2009, 2.25% per annum for Base Rate Loans and 3.25% per annum for Eurodollar
Rate Loans and Letter of Credit Fees and (b) thereafter, the applicable
percentage per annum set forth below determined by reference to the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):


 


	
  Pricing

  Level

  	
   

  	
  Consolidated Leverage

  Ratio

  	
   

  	
  Eurodollar Rate

  and LC Fee

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  < 40%

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  
	
  2

  	
   

  	
  > 40% and < 50

  	
   

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  
	
  3

  	
   

  	
  > 50% and < 55%

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  
	
  4

  	
   

  	
  > 55%

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  



 


;
provided, that any increase or decrease in the Applicable Rate resulting
from a change in the Consolidated Leverage Ratio shall become effective as of
the first Business Day immediately following the date a Compliance Certificate
is delivered pursuant to Section 6.02(b); provided, however,
that if a Compliance Certificate is not delivered when due in accordance with
such Section, then, upon the request of the Required Lenders, Pricing Level 4
as set forth above shall apply in respect of all outstanding Obligations, in
each case as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and in each case shall remain
in effect until the date on which such Compliance Certificate is delivered.


 


Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).


 


6

















 


“Applicable Revolving
Credit Percentage” means with respect to any Revolving Credit Lender at any
time, such Revolving Credit Lender’s Applicable Percentage in respect of the
Revolving Credit Facility at such time.


 


“Appraised
Value” means, as
of any date of determination, for each Borrowing Base Property existing as of
such date, the most-recently obtained “as-is” appraised value of such Borrowing
Base Property as set forth in a FIRREA-compliant MAI appraisal commissioned,
reviewed and approved (in its reasonable discretion) by the Administrative
Agent.


 


“Appropriate Lender” means, at
any time, (a) with respect to either of the Term A Facility or the
Revolving Credit Facility, a Lender that has a Commitment with respect to such
Facility or holds a Term A Loan or a Revolving Credit Loan, respectively, at
such time, (b) with respect to the Letter of Credit Sublimit, (i) the
L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a),
the Revolving Credit Lenders and (c) with respect to the Swing Line
Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans
are outstanding pursuant to Section 2.04(a), the Revolving Credit
Lenders.


 


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


 


“Approved Ground
Leases” means, at any time, a
collective reference to all ground leases (whether related to an interest in
land alone or an interest in land and the improvements located thereon) with
respect to any Real Property: (a) under which a Borrowing Base Entity is the lessee or holds equivalent rights
(including, without limitation, as a sublessee), (b) that has a remaining
term of no less than forty (40) years (assuming the exercise of any applicable
extension options that are exercisable at the lessee’s option) or be otherwise
subject to a purchase option in favor of the lessee that is exercisable in the
sole discretion of such lessee and is for a nominal purchase price, (c) under
which any required rental payment, principal or interest payment or other
payment due under such lease or sublease, as applicable, from the Borrowing
Base Entity to the ground lessor is
not more than thirty (30) days past due, (d) where no party to such lease
or sublease, as applicable, is the subject of a Bankruptcy Event (except to the
extent that (i) such Person has been subject to a proceeding under
Chapter 11 of the Federal Bankruptcy Code, (ii) the applicable bankruptcy
court has approved and confirmed such Person’s plan for reorganization, (iii) all
statutory appeal periods with respect to such proposed plan have been exhausted
without objection and (iv) such Person is performing its obligations under
such approved plan), (e) where the
Borrowing Base Entity’s interest in
the Real Property or the lease or sublease, as applicable, is not subject to (i) any
Lien other than a Permitted Lien of the type described in clause (a) of Section 7.01 or (ii) any
Negative Pledge; (f) containing provisions pursuant to which create
an obligation of the lessor to give the holder of any mortgage lien on such
leased property written notice of any defaults on the part of the lessee and
agreement of such lessor that such lease will not be terminated until such
holder has had a reasonable opportunity to cure or complete foreclosures, and
fails to do so; (g) containing provisions which permit the use of such
Real Property for its then-current use; (h) containing provisions which
provide for such other rights customarily required by mortgagees making a loan
secured by the interest of the holder of the leasehold estate demised pursuant
to a ground lease; and “Approved Ground
Lease” means any one of them; and (i) under which there exists
no default or event of default by a ground lessor which default or event of
default has caused or otherwise resulted in or could reasonably be expected to
cause or otherwise result in any material interference with the applicable
Borrower lessee’s occupancy or other rights under the applicable ground lease.


 


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


 


“Assignment and
Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E-1 or any other form
approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease or similar payments under the
relevant lease or other applicable agreement or instrument that would appear on



 


7

















 


a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease and (c) all
Synthetic Debt of such Person.


 


“Audited Financial
Statements” means the audited balance sheet of the Principal
Borrower as of February 20, 2009, the audited combined balance sheets of
Certain Government Properties (wholly owned by HRPT Properties Trust) as of December 31,
2008 and December 31, 2007, and the related combined statements of income,
ownership interest and cash flows, for each of the three years in the period
ended December 31, 2008, including the notes thereto.


 


“Availability
Period” means in respect of the Revolving Credit Facility, the
period from and including the Closing Date to the earliest of (a) the
Maturity Date for the Revolving Credit Facility, (b) the date of
termination of the Revolving Credit Commitments pursuant to Section 2.06,
and (c) the date of termination of the commitment of each Revolving Credit
Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02.


 


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


 


“BAS” means Banc
of America Securities LLC, in its capacity as joint lead arranger and joint
book manager.


 


“Base Rate”
means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its “prime rate,” (c) the Eurodollar Rate (assuming a one month
Interest Period) and (d) 2.00%.  
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.


 


“Base Rate Loan”
means a Revolving Credit Loan or a
Term A Loan that bears interest based on the defined term “Base Rate,”
regardless of whether clause (c) (referencing the Eurodollar Rate) of such
definition is then-applicable.


 


“BBP Value” means,
as of any date of determination, the sum of the most recently obtained (or
determined) Appraised Values of each of the Borrowing Base Properties existing
as of such date.


 


“Borrower”
and “Borrowers” have the respective meanings specified in the
introductory paragraph hereto.


 


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


 


“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term A
Borrowing, as the context may require.


 


“Borrowing Base”
means, as of any date of calculation, an amount equal to the lesser of (a) the
Collateral Value Amount as of such date and (b) the Mortgageability Amount
as of such date.


 


“Borrowing
Base Deliverables” means, with respect to each Real Property for which the
Borrowers seek approval as a “Borrowing Base Property” the following items
(except to the extent otherwise agreed in writing by the Administrative Agent
and Designated Agents):


 


(a)           evidence that
counterparts of the Mortgage related to such Real Property have been duly
executed, acknowledged and delivered and are in form suitable for filing or
recording in all filing or recording offices that the Administrative Agent may
deem necessary or desirable in order to create a valid first and subsisting
Lien on the property described therein in favor of the Administrative Agent for
the benefit of the Secured Parties and that all filing, documentary, stamp,
intangible and recording taxes and fees have been paid,


 


8

















 


(b)           a Mortgage Policy
with respect to the applicable Real Property, together with endorsements and in
amounts acceptable to the Administrative Agent, issued, coinsured and reinsured
by title insurers acceptable to the Administrative Agent, insuring the
Mortgages to be valid first and subsisting Liens on the property described
therein, free and clear of all defects (including, but not limited to,
mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted
Liens of the type set forth in the definition of the term “Borrowing Base Properties”
and other Liens approved by the Administrative Agent and providing for such
other affirmative insurance (including endorsements for future advances under
the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of
the applicable property) and such coinsurance and direct access reinsurance as
the Administrative Agent may deem necessary or desirable and as may be
available in the state where such Real Property is located,


 


(c)           American Land
Title Association/American Congress on Surveying and Mapping form surveys, for
which all necessary fees (where applicable) have been paid, and dated as of a
date satisfactory to the Administrative Agent, certified to the Administrative
Agent and the issuer of the Mortgage Policies in a manner satisfactory to the
Administrative Agent by a land surveyor duly registered and licensed in the
States in which the property described in such surveys is located and
acceptable to the Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such improvements or on
to such property, and other defects, other than encroachments and other defects
acceptable to the Administrative Agent,


 


(d)           property condition, engineering, soils
and other reports as to the properties described in the Mortgages, from
professional firms acceptable to the Administrative Agent, in each case in form
and substance acceptable to the Administrative Agent,


 


(e)           copies of each
Borrowing Base Lease and each other Lease in existence with respect to such
Real Property, together with estoppels and subordination, nondisturbance and
attornment agreements from any non-GSA tenants with respect to such other
Leases, in each case in form and substance acceptable to the Administrative
Agent,


 


(f)            to the extent
the applicable Real Property is subject to a ground lease pursuant to which a
Consolidated Party is the ground lessee, a copy of such ground lease (which
must be an Approved Ground Lease) and estoppel and consent agreements executed
by each of the ground lessors with respect to any such Approved Ground Lease,
along with (1) a memorandum of lease in recordable form with respect to
such leasehold interest, executed and acknowledged by the owner of the affected
real property, as lessor, or (2) evidence that the applicable Approved
Ground Lease with respect to such leasehold interest or a memorandum thereof has
been recorded in all places necessary or desirable, in the Administrative Agent’s
judgment, to give constructive notice to third-party purchasers of such
leasehold interest, or (3) if such leasehold interest was acquired or
subleased from the holder of a recorded leasehold interest, the applicable
assignment or sublease document, executed and acknowledged by such holder, in
each case in form sufficient to give such constructive notice upon recordation
and otherwise in form satisfactory to the Administrative Agent,


 


(g)           evidence of the
insurance required by the terms of the applicable Mortgage related to such Real
Property, in each case naming the Administrative Agent (for the benefit of the
Secured Parties) as additional insured (in the case of liability insurance) or
loss payee (in the case of hazard insurance),


 


(h)           a
FIRREA-compliant MAI appraisal of each of the properties described in the
Mortgages, in each case dated within ninety (90) days of the Closing Date or
the requested date of approval and in
form, substance and from an appraiser acceptable to the Administrative Agent
(such appraiser to be engaged by the Administrative Agent and paid for by the
Borrowers),


 


(i)            evidence as to (i) whether
such Real Property is in an area designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards (a “Flood Hazard
Property”) and (ii) if such Real Property is a Flood Hazard Property, (A) whether
the community in which such Real Property is located is participating in the
National Flood Insurance Program, (B) the applicable Borrower’s written
acknowledgment of receipt of written notification from the Administrative Agent
as to the fact that such Real Property is a Flood Hazard


 


9














 


Property and as to whether the community in which each such Flood
Hazard Property is located is participating in the National Flood Insurance
Program and (C) copies of insurance policies or certificates of insurance
of the Consolidated Parties evidencing flood insurance satisfactory to the
Administrative Agent and naming the Administrative Agent as sole loss payee on
behalf of the Lenders;


 


(j)            if
no zoning endorsement has been issued with respect to the Mortgage Policy, then
evidence satisfactory to the Administrative Agent that such Real Property, and
the uses of such Real Property, are in compliance in all material respects with
all applicable zoning laws (the evidence submitted as to which should include
the zoning designation made for such Real Property, the permitted uses of each
such Real Property under such zoning designation and, if available, zoning
requirements as to parking, lot size, ingress, egress and building setbacks);


 


(k)           an
environmental site assessment with respect to such Real Property issued not
more than one year prior to the date hereof showing no significant
environmental conditions which have not been properly addressed through a duly
approved and completed remediation (or such other resolution which has been
accepted in writing by either the Administrative Agent or all applicable
Governmental Authority(ies) with jurisdiction relating to the applicable
property and such conditions and having authority to enforce any Environmental
Laws with respect thereto) and otherwise showing conditions which are
acceptable to the Administrative Agent;


 


(l)            evidence
that all other action that the Administrative Agent may deem necessary or
desirable in order to create valid first and subsisting Liens on the property
described in the applicable Mortgage has been taken;


 


(m)          with respect to Real Properties
located in California, a seismic report with respect thereto dated as of a date
acceptable to the Administrative Agent and earthquake insurance to the extent
customarily obtained under the circumstances described in such report or as
otherwise deemed necessary by the Administrative Agent; and


 


(n)           with respect to each Borrowing Base Lease under which the
lessor’s/landlord’s interest is acquired from a Person other than the Borrower
that has executed and delivered the Mortgage with respect to the Real Property
subject to such Borrowing Base Lease, a copy of an assignment of such Borrowing
Base Lease, duly executed and enforceable, pursuant to which such
lessor/landlord assigns and otherwise conveys to the applicable Borrower all of
its right, title and interest to the applicable Borrowing Base Lease which
assignment shall: (i) include an agreement of the lessor/landlord to
promptly notify the tenant under such Borrowing Base Lease of such assignment,
instruct such tenant to make all future payments under such Borrowing Base
Lease to the applicable Borrower (or, if such tenant is the federal government
of the United States or an agency or authority of the federal government of the
United States), the assignment shall provide that the lessor/landlord shall
request such tenant to provide a novation agreement with respect to such
assignment; (ii) include an agreement of the lessor/landlord to, promptly
upon receipt of same, transfer all rent and other payments made by the tenant
under such Borrowing Base Lease to the new landlord and to hold all such rent
and other payments in trust for the benefit of such new landlord pending
transfer and (iii) otherwise be in form and substance acceptable to the
Administrative Agent.


 


“Borrowing Base Entity”
means, as of any date of determination, any Person that owns a Borrowing Base
Property, and “Borrowing Base Entities” means a collective reference to
all of them.


 


“Borrowing Base Lease”
means, with respect to any Real Property, a fully executed and effective Lease
meeting the following criteria:


 


(a)           the
lessee/tenant under such Lease (i) is the federal government of the United
States (or an agency or authority of the federal government of the United
States) or a state or municipal government (or an agency or authority of same)
located in the United States; provided, that if the applicable lessee/tenant is
a state or municipal government (or a related agency or authority), such
lessee/tenant must, in any case, have a minimum credit rating of A- from
S&P and A3 from Moodys and otherwise be acceptable to the Administrative
Agent, (ii) is not in arrears on any required minimum base rental payment
with respect to its lease beyond the later of (A) the applicable grace
period with respect thereto, if any, and (B) ninety (90) days; and (iii) is
not subject to a then-continuing bankruptcy event; and


 


10

















 


(b)           such
Lease has been submitted to and reviewed and approved in writing by the
Administrative Agent for qualification as such; provided, that (i) the
Administrative Agent’s review and approval of a proposed Borrowing Base Lease
shall be limited to its confirmation that such Lease meets the criteria set
forth in this definition and (ii) notwithstanding the foregoing, to the
extent the Administrative Agent does not provide written approval or rejection
of a proposed Borrowing Base Lease within fifteen (15) Business Days of the
date on which it receives a copy of same (and in the case of a rejection,
setting forth the basis for such rejection in reasonable detail), the Borrowers
shall have the right to send a written reminder notice to the Administrative
Agent concerning such Lease and, thereafter, to the extent the Administrative
Agent does not provide written approval or rejection of such proposed Borrowing
Base Lease within fifteen (15) Business Days of the date on which it receives
such reminder notice, such Lease shall be deemed to have been approved.


 


“Borrowing Base
Property” means, as of any date of determination, each Real Property:


 


(a)           that is set forth
on Schedule 1.01(a) hereto (as such schedule may be updated from
time to time in accordance with the terms hereof (including, without
limitation, Sections 1.10 and 6.02(b)), in each case to the
extent that such Real Property has not otherwise been removed as a “Borrowing
Base Property” pursuant to the other criteria for qualification as such set
forth in this definition and the other provisions of this Agreement;


 


(b)           with respect to
which (i) there exists one or more fully executed, delivered and effective
Borrowing Base Leases which demise in the aggregate not less than fifty percent
(50%) of the net leasable area at such Real Property and (ii) the
Occupancy Rate is greater than or equal to seventy-five percent (75.0%);
provided, that the Real Property located in Germantown, Maryland and identified
by the Borrowers as property #602250 shall not be required to comply with this
subclause (b)(ii) until the date which is one year following the date of
this Agreement;


 


(c)           that is either (i) 100% owned in fee simple
by a Borrower; or (ii) is 100% ground leased by a Borrower pursuant to an
Approved Ground Lease (or some combination of the foregoing);


 


(d)           with respect to which neither such Real Property nor any interest of
any applicable Borrower therein (including the lease thereof or any indirect
interest owned by the Borrowers), is subject to (i) any Lien other than
Permitted Liens or (ii) any Negative Pledge;


 


(e)           that is not (and,
in the case of a Real Property constituting an interest in land alone, the
material improvements located thereon are not) the subject of any condemnation
proceeding(s) as of such date that is or are material to the profitable
operation of such Real Property and has not, since initial qualification as a
“Borrowing Base Property” hereunder, been subject to any condemnation that is material to the profitable operation of such
Real Property;


 


(f)            that is operated
primarily as an office property;


 


(g)           that
is being maintained and preserved in good working order and condition (ordinary
wear and tear excepted) and is free of all structural defects,
environmental conditions or other adverse matters except for such defects,
conditions or matters individually or collectively which are not material to
the profitable operation of such Real Property;


 


(h)           that
is located in the
United States of America; and


 


(i)            with respect to
which the Borrowers have delivered the Borrowing Base Deliverables and obtained
the written approval of the Designated Agents with respect to same; provided,
that, notwithstanding the foregoing, to
the extent the Designated Agents do
not provide written approval or rejection of a proposed Borrowing Base Property
within fifteen (15) Business Days of the date on which they receive all of the
above-required information (and in the case of a rejection, setting forth the
basis for such rejection in reasonable detail), the Borrowers shall have the
right to send a written reminder notice to the Administrative Agent concerning
such proposed Borrowing Base Property and, thereafter, to the extent the Designated
Agents do not provide written approval
or rejection of such proposed Borrowing Base Property within fifteen (15)
Business Days of the date on which it receives such reminder notice, such
proposed Borrowing Base Property shall be deemed to have been approved;


 


11

















 


further, provided,
however, that notwithstanding the foregoing (x) to the extent the
aggregate Occupancy Rate (measured as the percentage of leased area counted in
the determination of Occupancy Rate for all such properties as compared to the
total leasable area contained therein) with respect to all Real Properties
qualifying as “Borrowing Base Properties” pursuant to the foregoing definition
is not equal to or in excess of eighty-five percent (85.0%), the Borrowers
shall remove Borrowing Base Properties and amounts allocable thereto from the
calculation of BBP Value, the calculation of the Mortgageability Amount and the
other financial covenant calculations relating to the Borrowing Base Properties
hereunder to the extent necessary to cause the Borrowing Base Properties
contributing to such calculations to have an aggregate Occupancy Rate of not
less than eighty-five percent (85.0%); (y) to the extent any Borrowing
Base Property (other than 5045 East Butler Avenue, Fresno, CA and 20
Massachusetts Avenue, NW, Washington DC, to the extent either or both qualify
as Borrowing Base Properties) contributes more than fifteen percent (15.0%) of
the Mortgageability Cash Flow, as calculated for any given date, the Net
Operating Income attributable to such Borrowing Base Property in excess of
fifteen percent (15%) of the Mortgageability Cash Flow shall be removed from
such calculation until such Borrowing Base Property accounts for an amount
which is equal to or less than fifteen percent (15.0%) of the Mortgageability
Cash Flow and (z) to the extent either of 5045 East Butler Avenue, Fresno,
CA or 20 Massachusetts Avenue, NW, Washington DC contributes more than
twenty-five percent (25.0%) of the Mortgageability Cash Flow, as calculated for
any given date, the Net Operating Income attributable to such Borrowing Base
Property in excess of twenty-five percent (25.0%)of the Mortgageability Cash
Flow shall, unless the Designated Agents consent in writing to inclusion, be
removed from such calculation until such Borrowing Base Property accounts for
an amount which is equal to or less than twenty-five percent (25.0%)of the Mortgageability
Cash Flow.


 


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


 


“Calculation Period”
means, as of any date of determination commencing with the delivery of the
Required Financial Information for the fiscal quarter ending June 30,
2009, the most recent four (4) fiscal quarter period for which the
Borrowers have provided the Required Financial Information; provided,
that (a) notwithstanding the foregoing, calculations made with respect to
Required Financial Information for fiscal quarters ending prior to June 30,
2010 shall be based on the period from April 1, 2009 through the end of
the applicable fiscal quarter (with the calculated amounts annualized to the
extent the period from April 1, 2009 through the most-recently ended four (4) fiscal
quarter period is not at least twelve (12) months); and (b) for
calculations made on a Pro Forma Basis, the amounts calculated for the
applicable Calculation Period shall be adjusted as set forth in the definition
of the term “Pro Forma Basis,” but shall otherwise relate to the applicable
Calculation Period (as defined above).


 


“Capital
Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations).


 


“Capitalization Rate”  means (subject to
the following proviso) 9.00%; provided, however, that the
Capitalization Rate shall be reviewed by Administrative Agent and Required
Lenders based upon market conditions for comparable property types and shall be
subject to adjustment (after consultation with Principal Borrower) by Required
Lenders upon exercise of the Extension Option as a condition to the
effectiveness of the Extension Option.


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding
meanings.


 


12

















 


“Cash Equivalents” means any
of the following types of Investments, to the extent owned by the Borrowers or
any of their Subsidiaries free and clear of all Liens (other than Liens created
under the Collateral Documents and
other Liens permitted hereunder):


 


(a)           readily
marketable obligations issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and
credit of the United States of America is pledged in support thereof;


 


(b)           time deposits
with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized
under the laws of the United States of America, any state thereof or the
District of Columbia or is the principal banking subsidiary of a bank holding
company organized under the laws of the United States of America, any state
thereof or the District of Columbia, and is a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial paper rated
as described in clause (c) of this definition and (iii) has combined
capital and surplus of at least $1,000,000,000, in each case with maturities of
not more than 90 days from the date of acquisition thereof;


 


(c)           commercial paper in an aggregate amount of no more than
$5,000,000 per issuer outstanding at any time issued by any Person
organized under the laws of any state of the United States of America and rated
at least “Prime-1” (or the then equivalent grade) by Moody’s or at least
“A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and


 


(d)           Investments,
classified in accordance with GAAP as current assets of the Principal Borrower
or any of its Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, which are administered by financial
institutions that have the highest rating obtainable from either Moody’s or
S&P, and the portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b) and (c) of
this definition.


 


“Cash Management
Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements.


 


“Cash Management Bank” means any
Person that is a Lender as of the date hereof and which has, prior to the date
hereof, entered into a Cash Management Agreement that remains in effect as of
the date hereof and any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity
as a party to such Cash Management Agreement.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980.


 


“CERCLIS” means the
Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the U.S. Environmental Protection Agency.


 


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


 


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


 


(a)           at
any time prior to the creation of a Public Market,  the Equity Investor  shall
cease to own and control legally and beneficially (free and clear of all
Liens), either directly or indirectly, equity securities in the Principal
Borrower representing more than 80% of the combined voting power of all of
equity securities entitled to vote for members of the board of directors or
equivalent governing body of the Principal Borrower on a fully-diluted basis
(and taking into account all such securities that  the Equity Investor  has
the right to acquire pursuant to any option right (as defined in clause (b) below)); or


 


13

















 


(b)           at
any time after the creation of a Public Market, any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) other than the Equity Investor becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed
to have “beneficial ownership” of all securities that such person or group has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time (such right, an “option right”)), directly or
indirectly, of 9.8% or more of
the equity securities of the Principal
Borrower entitled to vote for members of the board of directors or
equivalent governing body of the
Principal Borrower on a fully-diluted basis (and taking into account all
such securities that such “person” or “group” has the right to acquire pursuant
to any option right); or


 


(c)           during any period
of 12 consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of the Principal Borrower
cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors);
or


 


(d)           any Person or two
or more Persons acting in concert shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, Control over the management or policies of the Principal Borrower, or control over
the equity securities of the Principal
Borrower entitled to vote for members of the board of directors or
equivalent governing body of the
Principal Borrower on a fully-diluted basis (and taking into account all
such securities that such Person or Persons have the right to acquire pursuant
to any option right) representing 25%
or more of the combined voting power of such securities; or


 


(e)           termination of
the Management Agreements.


 


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


 


“Code”
means the Internal Revenue Code of 1986.


 


“Collateral”
means all of the “Collateral”
and “Mortgaged Property” referred to in the Collateral Documents and all
of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the
benefit of the Secured Parties.


 


“Collateral
Documents” means, collectively, the Pledge Agreement, the Mortgages,
each of the mortgages, collateral assignments, security agreements, pledge
agreements or other similar agreements delivered to the Administrative Agent
pursuant to Section 6.12, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties.


 


“Collateral Value
Amount” means, as of any date of determination, an amount equal to (a) fifty-five
percent (55.0%), multiplied by (b) the BBP Value as of such date.


 


“Commitment”
means a Term A Commitment or a Revolving Credit Commitment, as the context
may require.


 


14

















 


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


 


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


 


“Consolidated EBITDA” means, for the Consolidated Parties for each
Calculation Period, the sum of (a) net income of the Consolidated
Parties, in each case, excluding any non-recurring or extraordinary gains and
losses for such Calculation Period, plus (b) an amount which, in
the determination of net income for such Calculation Period pursuant to
clause (a) above, has been deducted for or in connection with (i) Consolidated
Interest Expense (plus, amortization of deferred financing costs, to the extent
included in the determination of Consolidated Interest Expense per GAAP), (ii) income
taxes, and (iii) depreciation and amortization, all determined in
accordance with GAAP.


 


“Consolidated Fixed Charge Coverage Ratio” means, as of any date
of determination, the ratio of (a) Consolidated EBITDA to Consolidated
Fixed Charges, in each case as measured as of the end of the most-recent
Calculation Period (and, if specifically required, including adjustments for
subsequent events or conditions on a Pro Forma Basis).


 


“Consolidated Fixed Charges” means, for the Consolidated Parties
for each Calculation Period, the sum of (a) Consolidated Interest Expense
for such Calculation Period, plus (b) current scheduled principal
payments of Consolidated Funded Debt for such Calculation Period (including,
for purposes hereof, current scheduled reductions in commitments, but excluding
any payment of principal under the Credit Documents and any “balloon” payment
or final payment at maturity that is significantly larger than the scheduled
payments that preceded it), plus (c) dividends and distributions on
preferred stock, if any, for such Calculation Period, in each case, on a
consolidated basis determined in accordance with GAAP.


 


“Consolidated Floating Rate Debt” means, as of any date of
determination, any Consolidated Funded Debt that bears interest based on an
index that floats, or otherwise changes from time to time.


 


“Consolidated Funded Debt” means, as of any date of determination,
all Funded Debt of the Consolidated Parties determined on a consolidated basis.


 


“Consolidated Interest Expense” means, for the Consolidated
Parties for any Calculation Period, all interest expense and letter of credit
fee expense, on a consolidated basis in accordance with GAAP during such
period; provided, that interest expenses shall, in any event, (a) include
the interest component under capital leases and the implied interest component
under securitization transactions and (b) exclude the amortization of any
deferred financing fees.


 


“Consolidated Leverage Ratio” means, as of any date of
determination, the ratio of Consolidated Funded Debt to Total Asset Value, in
each case as measured as of the end of the most-recent Calculation Period (and,
if required, including adjustments for subsequent events or conditions on a Pro
Forma Basis).


 


“Consolidated Parties” means Principal Borrower and its
consolidated subsidiaries, as determined in accordance with GAAP.


 


“Consolidated Tangible Net Worth” means, for the Consolidated
Parties as of any date of determination, (a) Shareholders’ Equity, less (b) all
intangible assets, plus (c) all accumulated depreciation and amortization,
all determined in accordance with GAAP.


 


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


 


15

















 


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


 


“Convertible Term A Prepaid Principal” has the
meaning assigned to such term in Section 2.05(b)(i) hereof.


 


“Credit Extension”
means each of the following:  (a) a
Borrowing and (b) an L/C Credit Extension.


 


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


 


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


 


“Default Rate”
means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans under the Term A
Facility plus (iii) 2.00% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2.00% per annum and (b) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2.00% per annum.


 


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


 


“Designated Agents”
means a collective reference to (a) the Administrative Agent (except to
the extent it is a Defaulting Lender hereunder) and (b) Wells Fargo Bank,
N.A., in its capacity as a joint lead arranger and joint book manager (except
to the extent Wells Fargo Bank, N.A. is a Defaulting Lender hereunder).


 


“Determination Date”
means, for any Facility Year, the first Business Day of such Facility Year.


 


“Development Activities” means activities
relating directly or indirectly to the development of build-to-suit Real
Property assets.


 


“Disclosed Litigation” has the
meaning set forth in Section 5.06.


 


“Disposition”
or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
Sale and Leaseback Transaction) of any property by any Person (or the granting
of any option or other right to do any of the foregoing), including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith.


 


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


 


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


 


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


 


16

















 


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


 


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


 


“Environmental Permit” means any permit,
approval, identification number, license or other authorization required under
any Environmental Law.


 


“Equity Interests” means,
with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in
such Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.


 


“Equity Investor” means HRPT Properties Trust.


 


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


 


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


 


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Borrower or any ERISA Affiliate.


 


“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Rate Loan (or for a
one month Interest Period with respect to a Base Rate Loan where the Base Rate
is determined pursuant to clause (c) of the definition of such term), the
greater of (a) 2.00% and (b) the rate per annum equal to the British
Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period.  If the rate referenced in clause (b) above
is not available at such time for any reason, then the rate referenced in such
clause (b) for such Interest Period shall be the rate per annum determined
by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the 


 


17

















 


approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.


 


“Eurodollar Rate
Loan” means a Revolving Credit Loan or a Term A Loan that bears
interest at a rate based on the Eurodollar Rate but not including a loan where
the interest rate is determined under clause (c) of the definition of the
term “Base Rate.”


 


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


 


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


 


“Extended Maturity Date” has the meaning
specified in Section 2.14(b).


 


“Extension Option”
means the option to extend the Maturity Date of the respective Facilities
provided pursuant to Section 2.14 hereof.


 


“Facility” means the
Term A Facility or the Revolving Credit Facility, as the context may
require.


 


“Facility Year” means each period during the
term hereof commencing on the Closing Date and each anniversary thereof and
extending until the day prior to the next anniversary of the Closing Date.


 


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


 


“Fee Letter”
means the letter agreement, dated February 18, 2009, among the Principal
Borrower (on its own behalf and on behalf of each of the other Borrowers), the
Administrative Agent and BAS.


 


“FFO Distribution Allowance” means, for each
fiscal year of the Consolidated Parties, an amount equal to 95% of Funds From
Operations for such fiscal year.


 


“FIRREA” means the Federal Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time
to time.


 


18

















 


“Foreign Lender”
means any Lender that is organized under the Laws of a jurisdiction other than
that in which the Borrowers are resident for tax purposes (including such a
Lender when acting in the capacity of the L/C Issuer).  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


“Foreign Subsidiary” means any Subsidiary that
is not a Domestic Subsidiary.


 


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


 


“Fully Satisfied” means, with respect to the
Obligations as of any date, that, as of such date, (a) all principal of
and interest accrued to such date which constitute Obligations shall have been
irrevocably paid in full in cash, (b) all fees, expenses and other amounts
then due and payable which constitute Obligations shall have been irrevocably
paid in cash, (c) all outstanding Letters of Credit shall have been (i) terminated,
(ii) fully irrevocably Cash Collateralized or (iii) secured by one or
more letters of credit on terms and conditions, and with one or more financial
institutions, satisfactory to the L/C Issuer and (d) the Commitments shall
have expired or been terminated in full (in each case, other than inchoate
indemnification liabilities arising under the Loan Documents).


 


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


 


“Funded Debt”
means, as to any Person (or consolidated group of Persons) at a particular
time, without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:


 


(a)           all obligations
for borrowed money, whether current or long-term (including the Obligations
hereunder), and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;


 


(b)           all purchase
money indebtedness (including indebtedness and obligations in respect of
conditional sales and title retention arrangements, except for customary conditional
sales and title retention arrangements with suppliers that are entered into in
the ordinary course of business) and all indebtedness and obligations in
respect of the deferred purchase price of property or services (other than
trade accounts payable incurred in the ordinary course of business and payable
on customary trade terms);


 


(c)           all direct
obligations under letters of credit (including standby and commercial),
bankers’ acceptances and similar instruments (including bank guaranties, surety
bonds, comfort letters, keep-well agreements and capital maintenance
agreements) to the extent such instruments or agreements support financial,
rather than performance, obligations;


 


(d)           the attributable
principal amount of capital leases and synthetic leases;


 


(e)           the attributable
principal amount of securitization transactions;


 


(f)            all preferred
stock and comparable equity interests providing for mandatory redemption,
sinking fund or other like payments;


 


(g)           guarantees and
other support obligations in respect of Funded Debt of another Person (other
than Persons in such group, if applicable); and


 


(h)           Funded Debt of
any partnership or joint venture or other similar entity in which such Person
is a general partner or joint venturer in an amount equal to the greater of (i) the
amount of such Funded Debt that is recourse to such Person (or, if applicable,
any Person in such consolidated group) for payment thereof; and (ii) an
amount equal to (A) the amount of such Funded Debt multiplied by (B) such
Person’s percentage ownership in such joint venture.


 


For purposes hereof, the
amount of Funded Debt shall be determined based on the outstanding principal
amount in the case of borrowed money indebtedness under clause (a) and
purchase money indebtedness and the deferred


 


19














 


purchase obligations
under clause (b), based on the maximum amount available to be drawn in the
case of letter of credit obligations and the other obligations under
clause (c), and based on the amount of Funded Debt that is the subject of
the support obligations in the case of support obligations under
clause (g).  For purposes of
clarification, “Funded Debt” of a Person constituting a consolidated group
shall not include inter-company indebtedness of such Persons, general accounts
payable of such Persons which arise in the ordinary course of business, accrued
expenses of such Persons incurred in the ordinary course of business or
minority interests in joint ventures or limited partnerships (except to the
extent set forth in clause (h) above).


 


“Funds From Operations”
means, with respect to the immediately prior fiscal quarter period, the
Consolidated Parties’ net income (or loss), plus depreciation and amortization
and after adjustments for unconsolidated partnerships and joint ventures as
hereafter provided.  Notwithstanding
contrary treatment under GAAP, for purposes hereof, (a) “Funds From
Operations” shall include, and be adjusted to take into account, the Borrowers’
interests in unconsolidated partnerships and joint ventures, on the same basis
as consolidated partnerships and subsidiaries, as provided in the “white paper”
issued in April 2002 by the National Association of Real Estate Investment
Trusts, a copy of which has been provided to the Administrative Agent and the
Lenders and (b) net income (or loss) shall not include gains (or, if
applicable, losses) resulting from or in connection with (i) restructuring
of indebtedness, (ii) sales of property, (iii) sales or redemptions
of preferred stock or (iv) non cash asset impairment charges.


 


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


 


“Governmental Authority”
means the government of the United States or any other nation, or of any
political subdivision thereof, whether provincial, state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


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


 


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


 


20

















 


“Hedge Bank” means any
Person that, at the time it enters into an interest rate Swap Contract not
prohibited under Article VI or VII, is a Lender or an
Affiliate of a Lender, in its capacity as a party to such Swap Contract.


 


“Impacted Lender”
means a Defaulting Lender or any other Lender as to which (a) the L/C
Issuer has a good faith belief that such Lender has defaulted in fulfilling its
obligations under one or more other syndicated credit facilities or (b) an
entity that Controls such Lender has been deemed by a Governmental Authority to
be or is reasonably believed by the L/C Issuer to be insolvent or has otherwise
become subject to any bankruptcy, insolvency or other similar proceeding
(whether voluntary or involuntary).


 


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


 


(a)           all obligations
of such Person for borrowed money and all obligations of such Person evidenced
by bonds, debentures, notes, loan agreements or other similar instruments;


 


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


 


(c)           net obligations
of such Person under any Swap Contract;


 


(d)           all obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not
past due for more than 60 days
after the date on which such trade account was created);


 


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


 


(f)            all Attributable
Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations
of such Person and all Synthetic Debt of such Person;


 


(g)           all obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person or
any warrant, right or option to acquire such Equity Interest, valued, in the
case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference, plus (but without duplication and
only to the extent required to be paid) accrued and unpaid dividends; and


 


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


 


For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.  The amount
of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date.


 


“Indemnified Taxes”  means Taxes other than Excluded Taxes.


 


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


 


“Information” has the
meaning specified in Section 10.07.


 


“Information Memorandum” means the information memorandum
dated March 4, 2009 used by BAS in
connection with the syndication of the Commitments.


 


21

















 


“Initial
Maturity Date” has the meaning specified in Section 2.14(a).


 


“Interest Payment
Date” means, (a) as to any Eurodollar Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date of the
Facility under which such Loan was made; provided, however, that
if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and
the Maturity Date of the Facility under which such Loan was made (with Swing
Line Loans being deemed made under the Revolving Credit Facility for purposes
of this definition).


 


“Interest Period”
means, (a) as to any Base Rate Loan with respect to which the Base Rate is
determined in  accordance with clause (c) of
the definition of the term “Base Rate,” an “Interest Period” as defined herein,
but for only a one (1) month period; and (b) as to each Eurodollar
Rate Loan, the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate Loan and ending on
the date one, two, three or six months thereafter, as selected by the Borrowers
in a Committed Loan Notice; provided that:


 


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


 


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


 


(iii)          no Interest Period shall extend beyond
the Maturity Date of the Facility under which such Loan was made.


 


“Investment” by
any Person (a) in any other Person means (i) any acquisition of such
Person or its property (which property qualifies as a capital asset or is
otherwise purchased outside the ordinary course of business of such Person), (ii) any
other acquisition of Equity Interests, bonds, notes, debentures or other
ownership interests or other securities of such other Person, (iii) any
deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment
inventory and supplies in the ordinary course of business) or (iv) any
other capital contribution to or investment in such Person, including, without
limitation, any Guarantee (including any support for a letter of credit issued
on behalf of such Person) incurred for the benefit of such Person and any
Disposition to such Person for consideration less than the fair market value of
the property disposed in such transaction, but excluding any Restricted Payment
to such Person; and (b) means the purchase price paid, acquisition costs
and expenses incurred and any other value given by such Person in connection
with the purchase or other acquisition for value of any property which
qualifies as a capital asset or is otherwise purchased outside the ordinary
course of business of such Person. 
Investments which are capital contributions or purchases of Equity
Interests which have a right to participate in the profits of the issuer
thereof shall be valued at the amount (or, in the case of any Investment made
with property other than cash, the book value of such property) actually
contributed or paid (including cash and non-cash consideration and any
assumption of Indebtedness) to purchase such Equity Interests as of the date of
such contribution or payment, less the amount of all repayments and returns of
principal or capital thereon to the extent paid in cash or Cash Equivalents
(or, in the case of any Investment made with property other than cash, upon
return of such property, by an amount equal to the lesser of the book value of
such property at the time of such Investment or the fair market value of such
Property at the time of such return) and received after the Closing Date.  Investments which are loans, advances,
extensions of credit or Guarantees shall be valued at the principal amount of
such loan, advance or extension of credit outstanding as of the date of
determination or, as applicable, the principal amount of the loan or advance
outstanding as of the date of determination actually guaranteed by such
Guarantees.


 


“IP Rights”
has the meaning specified in Section 5.17.


 


“IRS”
means the United States Internal Revenue Service.


 


22

















 


“ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc.
(or such later version thereof as may be in effect at the time of issuance).


 


“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and any Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating
to such Letter of Credit.


 


“Joinder Agreement”
means a Joinder Agreement substantially in the form of Exhibit I
hereto, executed and delivered by a new Borrower in accordance with the
provisions of Section 6.12 hereof.


 


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


 


“L/C Advance”
means, with respect to each Revolving Credit Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its Applicable
Revolving Credit Percentage.


 


“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a
Revolving Credit Borrowing.


 


“L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


 


“L/C Issuer”
means Bank of America in its capacity as issuer of Letters of Credit hereunder,
or any successor issuer of Letters of Credit hereunder.


 


“L/C Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Lease” means a
lease, sublease, license, concession agreement or other agreement or other
agreement (not including any ground lease) providing for the use or occupancy
of any portion of any Real Property owned or leased by any Borrower, including
all amendments, supplements, restatements, assignments and other modifications
thereto.


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.


 


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


 


“Letter of Credit”
means any letter of credit issued hereunder. 
A Letter of Credit may be a
standby letter of credit only.


 


“Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


 


23

















 


“Letter of Credit
Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (or, if such day
is not a Business Day, the next preceding Business Day).


 


“Letter of Credit Fee”
has the meaning specified in Section 2.03(i).


 


“Letter of Credit
Sublimit” means, as of any date of determination, an amount equal to
the lesser of (a) $25,000,000 and (b) the Aggregate Revolving
Commitments as of such date.  The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments and only Lenders holding Revolving Credit Commitments shall
participate in exposure related to Letters of Credit.


 


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


 


“Loan”
means an extension of credit by a Lender to the Borrowers under Article II
in the form of a Term A Loan, a Revolving Credit Loan or a Swing Line Loan.


 


“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the
Collateral Documents, (d) the Fee Letter, (e) each Issuer Document
and (f) each Joinder Agreement.


 


“Management Agreements”
has the meaning specified in Section 4.01(f).


 


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


 


“Material Contract”
means, with respect to any Person, each contract (other than a Lease) to which
such Person is a party which is not terminable on thirty (30) days notice
without penalty and which involves aggregate consideration payable to or by
such Person of $250,000 or more in any year or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Person.


 


“Maturity Date”
means the later to occur of (a) the Initial Maturity Date; and (b) to
the extent maturity is extended pursuant to Section 2.14, the
Extended Maturity Date.; provided,
however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.


 


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


 


“Mortgage” has the
meaning specified in Section 4.01(a)(iv).


 


“Mortgage Policy” means,
with respect to any Real Property, a fully paid American Land Title Association
Lender’s Extended Coverage title insurance policy with respect to any Mortgage
related thereto.


 


“Mortgageability
Amount” means, as of any date of calculation, the maximum principal amount
which can be supported by the Mortgageability Cash Flow, assuming a 25-year
amortization and an interest rate which is the greater of the 10-Year Treasury
Rate + 3.50% or 8.0% and minimum 1.65x debt service coverage (as calculated by
the Principal Borrower, subject to review and approval by the Administrative
Agent (such approval to be granted or withheld in its reasonable discretion)).


 


24

















 


“Mortgageability Cash
Flow” means, as of any date of calculation, the sum of the Net Operating
Incomes from each of the Borrowing Base Properties for the most recently-ended
Calculation Period (and, if
specifically required, including adjustments for subsequent events or
conditions on a Pro Forma Basis).


 


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


 


“Negative Pledge”
means a provision of any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien on any assets of a Person,
whether presently owned or hereafter acquired in favor of the Administrative
Agent for the benefit of the Secured Parties and as security for the
Obligations; provided, however, that an agreement that
establishes a maximum ratio of unsecured debt to unencumbered assets, or of
secured debt to total assets, or that otherwise 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 Cash Proceeds”
means, with respect to the sale or issuance of any Equity Interest by the
Principal Borrower, the excess of (i) the sum of the cash and Cash
Equivalents received in connection with such transaction over (ii) the
underwriting discounts and commissions, and other reasonable and customary
out-of-pocket expenses, incurred by the Principal Borrower  in
connection therewith.


 


“Net Operating Income”
means, with respect to any Borrowing Base Property and for the most recently
ended Calculation Period, an amount equal to (a) the aggregate gross
revenues from the operations of such Borrowing Base Property during the
applicable Calculation Period, minus (b) the sum of (i) all expenses
and other proper charges incurred in connection with the operation of such
Borrowing Base Property during such period pro-rated as appropriate (including
real estate taxes, but excluding any management fees, debt service charges,
income taxes, depreciation, amortization and other non-cash expenses), and (ii) a
management fee that is the greater of 3% of the aggregate net revenues from the
operations of such Borrowing Base Property during such period or actual
management fees paid and (iii) an annual replacement reserve of $0.50 per
square foot.


 


“Note”
means a Term A Note or a Revolving Credit Note, as the context may require.


 


“NPL” means the
National Priorities List under CERCLA.


 


“NY Maximum Principal
Amount” has the meaning assigned to such term in Section 10.25
hereof.


 


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


 


“Occupancy Rate”
means, for any Real Property, the percentage of leasable area of such Real
Property that is (a) leased pursuant to one or more Borrowing Base Leases
and, if applicable, other fully-effective and enforceable third-party
market-rate Leases (as reasonably determined by the Administrative Agent) and (b) with
respect to Leases that are not Borrowing Base Leases, the tenants which are not
more than ninety (90) days in arrears on base rental payments and not in
bankruptcy or otherwise subject to any sort of insolvency proceedings.


 


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


 


25

















 


instrument, filing or
notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.


 


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


 


“Outstanding Amount”
means (a) with respect to Term A Loans, Revolving Credit Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Term A
Loans, Revolving Credit Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Borrowers of Unreimbursed Amounts.


 


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


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


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


 


“Permitted Liens”
means, at any time, Liens in respect of Property of the Consolidated Parties
permitted to exist at such time pursuant to the terms of Section 7.01.


 


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


 


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


 


“Platform” has the
meaning specified in Section 6.02.


 


“Pledge Agreement” has the
meaning specified in Section 4.01(a)(iii).


 


“Pledged Interests”
means, as of any date of determination, a collective reference to 100.0% of the
Equity Interests of each Borrowing Base Entity as of such date.


 


“Principal Borrower”
has the meaning assigned to such term in the introductory paragraph hereof.


 


“Pro Forma Basis”
has the meaning specified in Section 1.03.


 


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


 


“Public Market”
shall exist if (a) a Public Offering has been consummated and (b) any
Equity Interests of the Principal
Borrower are actively traded on either the New York Stock Exchange or
the NASDAQ markets.


 


“Public Offering”
means a public offering of the Equity Interests of the Principal Borrower or any of its Subsidiaries pursuant to an
effective registration statement under the Securities Act of 1933, as amended.


 


26

















 


“QRS” means a
Person qualifying for treatment either as a “qualified REIT subsidiary” under Section 856(i) of
the Code, or as an entity disregarded as an entity separate from its owner
under Treasury Regulations under Section 7701 of the Code.


 


“Real Properties”
means, at any time, a collective reference to each of the facilities and real
properties owned or leased by the Principal Borrower or any of its Subsidiaries
or in which any such party has an interest at such time; and “Real Property”
means any one of such Real Properties.


 


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


 


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


 


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


 


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


 


“Required Financial
Information” means, with respect to each fiscal period or quarter of the
Principal Borrower, (a) the financial statements required to be delivered
pursuant to Section 6.01(a) or (b) for such fiscal
period or quarter, and (b) the compliance certificate required by Section 6.02(b) to
be delivered with the financial statements described in clause (a) above.


 


“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or
continuation of Term A Loans or Revolving Credit Loans, a Committed Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.


 


“Required Lenders”
means, as of any date of determination, at least two (2) Lenders (to the extent there is more
than one Lender existing hereunder as of such date) holding more than sixty-six and two-thirds percent
(66 2/3%)  of the sum of the
(a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed “held” by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of,
and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief
financial officer, treasurer, assistant treasurer or controller of a Borrower and any other officer or employee of the
applicable Borrower so designated by any of the foregoing officers in a notice
to the Administrative Agent.  Any
document delivered hereunder that is signed by a Responsible Officer of a
Borrower shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Borrower.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, defeasance, acquisition, cancellation
or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to any Person’s stockholders, partners or
members (or the equivalent of any thereof), or any option, warrant or other
right to acquire any such dividend or other distribution or payment.


 


“Revolver Unused Fee”
has the meaning specified in Section 2.09(a).


 


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


 


27

















 


“Revolving Credit
Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to
Section 2.01(c), (b) purchase participations in L/C Obligations,
and (c) purchase participations in Swing Line Loans, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 under the caption “Revolving
Credit Commitment” or opposite such caption in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.


 


“Revolving Credit
Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.


 


“Revolving Credit
Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.


 


“Revolving Credit
Loan” has the meaning specified in Section 2.01(c).


 


“Revolving Credit
Note”
means a promissory note made by the Borrowers in favor of a Revolving Credit
Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may
be, made by such Revolving Credit Lender, substantially in the form of Exhibit C-2.


 


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


 


“Sale and Leaseback
Transaction” means any arrangement pursuant to which any Consolidated
Party, directly or indirectly, becomes liable as lessee, guarantor or other
surety with respect to any lease, whether an operating lease or a capital
lease, of any property (a) which such Consolidated Party has sold or
transferred (or is to sell or transfer) to a Person which is not a Consolidated
Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease.


 


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


 


“Secured Cash Management Agreement” means any Cash Management Agreement
that is entered into by and between any Borrower and any Cash Management Bank.


 


“Secured Hedge Agreement” means any interest rate Swap
Contract permitted under Article VI or VII that is entered
into by and between any Borrower and any Hedge Bank.


 


“Secured Parties” means,
collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge
Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05,
and the other Persons the Obligations owing to which are or are purported to be
secured by the Collateral under the terms of the Collateral Documents.


 


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


 


“Solvent”
and “Solvency” mean,
with respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature, (d) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute
an unreasonably small capital, and (e) such Person is able to pay its
debts and liabilities, contingent obligations and 


 


28

















 


other commitments as they
mature in the ordinary course of business. 
The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the
Principal Borrower.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (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, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


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


 


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.


 


“Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.


 


“Swing Line Loan”
has the meaning specified in Section 2.04(a).


 


“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit B.


 


“Swing Line
Sublimit” means, as of any date of determination, an amount equal to
the lesser of (a) $10,000,000 and (b) the Aggregate Revolving
Commitments as of such date.  The Swing
Line Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments and only Lenders holding Revolving Credit Commitments shall
participate in exposure related to the Swing Line Loans.


 


“Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all
obligations of such Person in respect of transactions entered into by such
Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions
that function primarily as a borrowing) but are not otherwise included
in the definition of “Indebtedness” or as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance
with GAAP.


 


“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement
for the use or possession of property (including Sale and


 


29














 


Leaseback Transactions),
in each case, creating obligations that do not appear on the balance sheet of
such Person but which, upon the application of any Debtor Relief Laws to such
Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).


 


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


 


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


 


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


 


“Term A Facility”
means, at any time, (a) on or
prior to the Closing Date, the aggregate amount of the Term A Commitments
at such time ($200,000,000) and (b) thereafter, the aggregate
principal amount of the Term A Loans of all Term A Lenders outstanding at
such time (including any increases in the Term A Facility that may occur from
time to time in connection with the provisions of Section 2.15
hereof).


 


“Term A Lender”
means (a) at any time on or prior to the Closing Date, any Lender that has
a Term A Commitment at such time and (b) at any time after the
Closing Date, any Lender that holds Term A Loans at such time (including
any new Term A Lenders that may enter into the Term A Facility by operation of
the provisions of Section 2.15 hereof).


 


“Term A Loan”
means an advance made by any Term A Lender under Section 2.01(a) hereof.


 


“Term A Note”
means a promissory note made by the Borrowers in favor of a Term A Lender
evidencing Term A Loans made by such Term A Lender, substantially in
the form of Exhibit C-1.


 


“Threshold Amount”
means  $10,000,000 with respect to liabilities and obligations that are recourse
to the Borrowers or any of their property and $25,000,000 with respect to
liabilities and obligations of any Subsidiaries of the Borrowers (provided such
liabilities and obligations are non-recourse to the Borrowers (other than
customary non-recourse carve-outs)).


 


“Total Asset Value”
means, without duplication, for any period,
with respect to the Consolidated Parties on a consolidated basis, the sum of
(a) (i) (A) Consolidated EBITDA for the most-recently ended
Calculation Period, minus (B) the aggregate amount of Consolidated
EBITDA attributable to each real property asset sold or otherwise disposed of
during such Calculation Period, minus (C) the aggregate amount of
Consolidated EBITDA attributable to each real property asset acquired during
the applicable Calculation Period; plus (D) for each real property
asset acquired during the first three quarters of such Calculation Period, an
amount equal to the Consolidated EBITDA removed pursuant to subclause (C) above,
annualized, divided by (ii) the Capitalization Rate with respect to
real property assets, plus (b) the acquisition cost of each real
property asset acquired during the final quarter of such Calculation Period, plus
(c) unrestricted cash and cash equivalents, plus (d) 80% of
the book value of land holdings, plus (e) 80% of the book value of
construction in progress, plus (f) 80% of the book value of
unencumbered mortgage investments, plus (g) the Borrowers’ pro rata
share of the forgoing items and components attributable to interests in
unconsolidated joint ventures.


 


“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.


 


“Total Revolving
Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.


 


30

















 


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


 


“UCC” means the
Uniform Commercial Code as from time to time in effect in the State of New
York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, “UCC” means the Uniform Commercial Code as
in effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.


 


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


 


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


 


“Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).


 


“Unused Rate”
means a percentage per annum equal to 0.40%.


 


1.02                         Other Interpretive Provisions.


 


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


 


(a)                                  The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Preliminary Statements, Exhibits and Schedules to, the Loan Document in which
such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


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


 


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


 


1.03                         Accounting Terms.


 


(a)                                  Generally.  All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as 


 


31

















 


in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed
herein.


 


(b)                                 Changes in GAAP. 
If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein.


 


(c)                                  Financial Covenant Calculation Conventions.  Notwithstanding the above, the parties hereto
acknowledge and agree that, for purposes of all calculations made under the
financial covenants set forth in Section 7.11 (including any
calculations required to made on a pro forma basis “Pro Forma Basis”), (i) after
consummation of any Disposition or removal of a Borrowing Base Property
pursuant to Section 1.10 (A) income statement
items (whether income or expense) and capital expenditures attributable to
the property disposed of or removed shall, to the extent not otherwise excluded
in such income statement items for the Consolidated Parties in accordance with
GAAP or in accordance with any defined terms set forth in Section 1.01,
be excluded as of the first day of the applicable period and (B) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the
first day of the applicable period and (ii) after consummation of any
acquisition (A) income statement items (whether positive or negative)
and capital expenditures attributable to the Person or property acquired shall,
to the extent not otherwise included in such income statement items for the
Consolidated Parties in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.01, be included to the extent relating
to any period applicable in such calculations, (B) to the extent not
retired in connection with such acquisition, Indebtedness of the Person or
property acquired shall be deemed to have been incurred as of the first day of
the applicable period, (iii) in connection with any incurrence of
Indebtedness, any Indebtedness which is retired in connection with such
incurrence shall be excluded and deemed to have been retired as of the first
day of the applicable period and (iv) pro forma adjustments may be
included to the extent that such adjustments would give effect to items that
are (1) directly attributable to the relevant transaction, (2) expected
to have a continuing impact on the Consolidated Parties and (3) factually
supportable (in the opinion of the Administrative Agent).


 


(d)                                 Consolidation of Variable Interest Entities.  All references herein to
consolidated financial statements of the Principal Borrower and its
Subsidiaries or to the determination of any amount for the Principal Borrower
and its Subsidiaries on a consolidated basis or any similar reference shall, in
each case, be deemed to include each variable interest entity that the
Principal Borrower is required to consolidate pursuant to FASB Interpretation No. 46
— Consolidation of Variable Interest Entities: an interpretation of ARB No. 51
(January 2003) as if such variable interest entity were a Subsidiary as
defined herein.


 


1.04                         Rounding.


 


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


 


1.05                         Times of Day.


 


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


 


1.06                         Letter of Credit Amounts.


 


Unless otherwise
specified herein, the amount of a Letter of Credit at any time shall be deemed
to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.


 


32

















 


1.07                         Currency Equivalents Generally.


 


Any amount specified in
this Agreement (other than in Articles II, IX and X) or
any of the other Loan Documents to be in Dollars shall also include the
equivalent of such amount in any currency other than Dollars, such equivalent
amount thereof in the applicable currency to be determined by the
Administrative Agent at such time on the basis of the Spot Rate (as defined
below) for the purchase of such currency with Dollars.  For purposes of this Section 1.07,
the “Spot Rate” for a currency means the rate determined by the
Administrative Agent to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date
of such determination; provided that the Administrative Agent may obtain
such spot rate from another financial institution designated by the
Administrative Agent if the Person acting in such capacity does not have as of
the date of determination a spot buying rate for any such currency.


 


1.08                         Joint and Several Liability of the
Borrowers.


 


(a)                                  Each of the Borrowers is accepting joint
and several liability hereunder in consideration of the financial
accommodations to be provided by the Lenders under this Agreement, for the
mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept joint and
several liability for the obligations of each of them.


 


(b)                                 Each of the Borrowers jointly and
severally hereby irrevocably and unconditionally accepts, not merely as a
surety but also as a co-debtor, joint and several liability with the other
Borrowers with respect to the payment and performance of all of the Obligations
arising under this Agreement and the other Loan Documents, it being the
intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each of the Borrowers without preferences or distinction
among them.


 


(c)                                  If and to the extent that any of the
Borrowers shall fail to make any payment with respect to any of the obligations
hereunder as and when due or to perform any of such obligations in accordance
with the terms thereof, then in each such event, the other Borrowers will make
such payment with respect to, or perform, such obligation.


 


(d)                                 The obligations of each Borrower under
the provisions of this Section 1.08 constitute full recourse
obligations of such Borrower, enforceable against it to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstances whatsoever.


 


(e)                                  Except as otherwise expressly provided
herein, each Borrower hereby waives notice of acceptance of its joint and
several liability, notice of occurrence of any Default or Event of Default
(except to the extent notice is expressly required to be given pursuant to the
terms of this Agreement), or of any demand for any payment under this
Agreement, notice of any action at any time taken or omitted by the
Administrative Agent and/or Lenders under or in respect of any of the
Obligations hereunder, any requirement of diligence and, generally, all
demands, notices and other formalities of every kind in connection with this
Agreement.  Each Borrower hereby assents
to, and waives notice of, any extension or postponement of the time for the
payment of any of the Obligations hereunder, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent and/or Lenders at any time or times in respect of any
default by any Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Administrative Agent and/or Lenders in respect of
any of the Obligations hereunder, and the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for any of
such Obligations or the addition, substitution or release, in whole or in part,
of any Borrower.  Without limiting the
generality of the foregoing, each Borrower assents to any other action or delay
in acting or any failure to act on the part of the Administrative Agent and/or
Lenders, including, without limitation, any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder which might, but for the provisions of this Section 1.08,
afford grounds for terminating, discharging or relieving such Borrower, in
whole or in part, from any of its obligations under this Section 1.08,
it being the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the obligations of such Borrower 


 


33

















 


under this Section 1.08
shall not be discharged except by performance and then only to the extent of
such performance.  The obligations of
each Borrower under this Section 1.08 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to any
reconstruction or similar proceeding with respect to any Borrower, the
Administrative Agent or any Lender.  The
joint and several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or place of
formation of any Borrower, the Administrative Agent or any Lender.


 


(f)                                    The provisions of this Section 1.08
are made for the benefit of the Administrative Agent and the Lenders and their
respective successors and assigns, and may be enforced by any such Person from
time to time against any of the Borrowers as often as occasion therefor may
arise and without requirement on the part of any Lender first to marshal any of
its claims or to exercise any of its rights against any of the other Borrowers
or to exhaust any remedies available to it against any of the other Borrowers
or to resort to any other source or means of obtaining payment of any of the
Obligations or to elect any other remedy. 
Without limiting the generality of the foregoing, each Borrower hereby
specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9,
inclusive, to the extent applicable.  The
provisions of this Section 1.08 shall remain in effect until all
the Obligations hereunder shall have been Fully Satisfied.


 


(g)                                 Notwithstanding any provision to the
contrary contained herein or in any other of the Loan Documents, the
obligations of each Borrower (other than the Principal Borrower) hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548
of the Bankruptcy Code or any comparable provisions of any applicable state
law.


 


1.09                        Appointment of Principal Borrower as
Agent for Borrowers.


 


Each of the
Borrowers hereby appoints the Principal Borrower to act as its exclusive agent
for all purposes under this Agreement and the other Loan Documents (including,
without limitation, with respect to all matters related to the borrowing,
repayment and administration of Credit Extensions as described in Articles
II and III hereof).  Each of
the Borrowers acknowledges and agrees that (a) the Principal Borrower may
execute such documents on behalf of all the Borrowers as the Principal Borrower
deems appropriate in its sole discretion and each Borrower shall be bound by
and obligated by all of the terms of any such document executed by the
Principal Borrower on its behalf, (b) any notice or other communication
delivered by the Administrative Agent or any Lender hereunder to the Principal
Borrower shall be deemed to have been delivered to each of the Borrowers and (c) the
Administrative Agent and each of the Lenders shall accept (and shall be
permitted to rely on) any document or agreement executed by the Principal
Borrower on behalf of the Borrowers (or any of them).  The Borrowers must act through the Principal
Borrower for all purposes under this Agreement and the other Loan
Documents.  Notwithstanding anything
contained herein to the contrary, to the extent any provision in this Agreement
requires any Borrower to interact in any manner with the Administrative Agent
or the Lenders, such Borrower shall do so through the Principal Borrower.


 


1.10                        Addition/Removal of Borrowing Base
Properties.


 


(a)                                  The Borrowers may from time to time amend
Schedule 1.01(a) to add an additional Real Property that qualifies
as a Borrowing Base Property; provided no Real Property shall be
included as a Borrowing Base Property in any compliance certificate delivered
to the Administrative Agent, on Schedule 1.01(a) or otherwise in
any calculation of the Borrowing Base, the Collateral Value Amount, the
Mortgageability Amount, or any of the components of the financial covenants set
forth in Section 7.11 that refer to “Borrowing Base Properties”
unless the Borrowers have delivered to the Administrative Agent the Borrowing
Base Deliverables with respect to such Real Property, and each of the
Designated Agents have approved in writing (or otherwise been deemed to have
been approved) such items and the qualification of such Real Property as a
Borrowing Base Property.


 


(b)                                 Notwithstanding anything contained herein
to the contrary, to the extent any property previously-qualifying as a
Borrowing Base Property ceases to meet the criteria for qualification as such,
such property shall be immediately removed from all financial covenant and Borrowing
Base-related calculations contained herein. 
Any 


 


34

















 


such property shall
immediately cease to be a “Borrowing Base Property” hereunder and that Schedule
1.01(a) attached hereto shall be deemed to have been immediately
amended to remove such Real Property from the list of Borrowing Base
Properties.


 


(c)                                  The Borrowers may voluntarily remove any
Borrowing Base Property from qualification as such (whether in anticipation of
the Disposition or encumbrance thereof or otherwise), if, and to the extent: (i) the
Borrowers shall, immediately following such removal, be in compliance (on a Pro
Forma Basis) with all of the covenants contained in Article VII of
this Agreement and with all Borrowing Base-related limitations on Outstanding
Amounts set forth in this Agreement and (ii) that portion of the
Collateral Value Amount attributable to the Borrowing Base Property proposed
for removal, plus that portion of the Borrowing Collateral Value Amount
attributable to all other such assets that have been removed during
then-current Facility Year is less than twenty-five percent (25.0%) of the
aggregate Collateral Value Amount as of the most recent Determination Date
(regardless of whether additional Borrowing Base Properties have been added to
the calculation of Collateral Value Amount during the period since such
Determination Date).


 


(d)                                 Upon removal of a Borrowing Base
Property, (i) Schedule 1.01(a) shall be immediately amended to
remove such Real Property from the list of Borrowing Base Properties; (ii) the
Borrowers shall timely deliver a Compliance Certificate with respect to such
removal in accordance with the terms of Section 6.03(e) hereof
after giving effect to such release; (iii) if and to the extent no Default
is then-continuing and the Administrative Agent determines that all information
and calculations set forth on such Compliance Certificate are accurate in all
material respects, all Liens in favor of the Administrative Agent or the Lender
on such Real Property shall be released promptly by the Administrative Agent;
and if the applicable Borrower no longer owns any Real Property qualified as a
Borrowing Base Property, such Borrower shall no longer be a Borrower hereunder
and Schedule 5.13(b) shall be amended to reflect the removal of
such Borrower.


 


ARTICLE II


 


THE COMMITMENTS
AND CREDIT EXTENSIONS


 


2.01                         The Loans.


 


(a)                                  The Term A Borrowing. 
Subject to the terms and conditions set forth herein, each Term A
Lender severally agrees to make a
single loan to the Borrowers on the Closing Date in an amount not to
exceed such Term A Lender’s Term A Commitment Percentage of the Term
A Facility and, to the extent any increase in the Term A Loans is made
effective pursuant to Section 2.15 hereof, a single loan to the Borrowers
(for each such increase) made as of the Increase Effective Date related to such
increase in an amount not to exceed such Term A Lender’s portion of the new
Term A Loans.  Each Term A Borrowing shall consist of Term A Loans made
simultaneously by the Term A Lenders in accordance with their respective
Applicable Percentage of the Term A Facility (as adjusted to reflect any
changes in such Applicable Percentages resulting from increases in the Term A
Facility resulting from application of Section 2.15 hereof
(including any such increase that is to be effective as of such date)).  Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed. 
Term A Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.  Notwithstanding
anything to the contrary contained herein, no Term A Loan shall be made
pursuant to the terms hereof to the extent the making of such Term A Loan would
result in the Total Outstandings exceeding the Borrowing Base immediately
following the making of such Term A Loan. 
Notwithstanding anything contained herein to the contrary, after giving
effect to any Term A Loan Borrowing, the Total Outstandings shall not, at any
time, exceed the Borrowing Base.


 


(b)                                 [Intentionally Omitted].


 


(c)                                  The Revolving Credit Borrowings. 
Subject to the terms and conditions set forth herein, each Revolving
Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit
Loan”) to the Borrowers from time to time, on any Business Day
during the Availability Period for the
Revolving Credit Facility, in an aggregate amount not to exceed at any
time outstanding the amount of such Lender’s Revolving Credit Commitment; provided,
however, that after giving effect to any Revolving Credit Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit
Facility, (ii) the aggregate Outstanding 


 


35

















 


Amount of the Revolving
Credit Loans of any Lender, plus such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Revolving Credit Lender’s Applicable Revolving
Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Revolving Credit Lender’s Revolving Credit Commitment and (iii) the
Total Outstandings shall not exceed the Borrowing Base.  Within the limits of each Revolving Credit
Lender’s Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section 2.01(c),
prepay under Section 2.05, and reborrow under this Section 2.01(c).  Revolving Credit Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


(d)                                 Pro Rata Allocations. 
To the extent the Term A Facility has not been terminated in connection
with the conversion referenced in Section 2.16 hereof, each Lender’s
Applicable Percentage of the of the total Outstanding Amount of the Term A
Loans shall, at all times, be equal to such Lender’s Applicable Percentage with
respect to the Revolving Credit Facility.


 


2.02                         Borrowings, Conversions and Continuations of Loans.


 


(a)                                  Each Term A Borrowing, each Revolving
Credit Borrowing, each conversion of Term A Loans or Revolving Credit Loans
from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrowers’ irrevocable notice to the Administrative
Agent, which may be given by telephone. 
Each such notice must be received by the Administrative Agent not later
than 12:00 noon (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrowers
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Principal
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrowers
are requesting a Term A Borrowing, a Revolving Credit Borrowing, a
conversion of Term A Loans or Revolving Credit Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date
of the Borrowing, conversion or continuation, as the case may be (which shall
be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Term A Loans or Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto.  If the Borrowers fail to specify a Type of
Loan in a Committed Loan Notice or if the Borrowers fail to give a timely
notice requesting a conversion or continuation, then the applicable Term A Loans
or Revolving Credit Loans shall be made as, or converted to, Eurodollar Rate
Loans with an Interest Period of one month. 
Any such automatic conversion shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans.  If the Borrowers request a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fail to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.  Notwithstanding anything to the contrary
herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.


 


(b)                                 Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage under the applicable Facility of the
applicable Term A Loans or Revolving Credit Loans, and if no timely notice
of a conversion or continuation is provided by the Borrowers, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Term A Borrowing or a
Revolving Credit Borrowing, each Appropriate Lender shall make the amount of
its Loan available to the Administrative Agent in immediately available funds
at the Administrative Agent’s Office not later than 3:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrowers in like funds as
received by the Administrative Agent either by (i) crediting the account
of the Principal Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to the Administrative Agent by the Borrowers; provided,
however, that if, on the date a Committed Loan Notice with respect to a
Revolving Credit 


 


36

















 


Borrowing is given by the
Borrowers, there are L/C Borrowings outstanding, then the proceeds of such
Revolving Credit Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to
the Borrowers as provided above.


 


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


 


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


 


(e)                                  After giving effect to all Term A
Borrowings, all conversions of Term A Loans from one Type to the other,
all continuations of Term A Loans as the same Type, all Revolving Credit
Borrowings, all conversions of Revolving Credit Loans from one Type to the
other, and all continuations of Revolving Credit Loans as the same Type there
shall not be more than five (5) Interest Periods in effect in respect of
all Loans hereunder.


 


2.03                         Letters of Credit.


 


(a)                                  The Letter of Credit Commitment.


 


(i) Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the Revolving Credit Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit Expiration
Date, to issue Letters of Credit for the account of any of the Borrowers (as requested by the Principal
Borrower), and to amend or extend Letters of Credit previously issued by it, in
accordance with Section 2.03(b), and (2) to honor drawings
under the Letters of Credit; and (B) the Revolving Credit Lenders
severally agree to participate in Letters of Credit issued for the account of
any of the Borrowers and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(w) the Total Outstandings shall not exceed the Borrowing Base, (x) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit
Facility, (y) the aggregate Outstanding Amount of the Revolving Credit
Loans of any Revolving Credit Lender, plus such Lender’s Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Revolving Credit
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. 
Each request by the Borrowers for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrowers that the L/C
Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. 
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed and terminated.


 


(ii)                                  The L/C Issuer shall not issue any Letter of Credit
if:


 


(A)                              subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required
Revolving Lenders have approved such expiry date; or


 


(B)                                the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless all
the Revolving Credit Lenders have approved such expiry date.


 


(iii)                               The L/C Issuer shall not be under any
obligation to issue any Letter of Credit if:


 


37

















 


(A)                              any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the
L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems
material to it;


 


(B)                                the issuance of such Letter of Credit
would violate one or more policies of the L/C Issuer applicable to letters of
credit generally;


 


(C)                                except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial
stated amount less than $100,000;


 


(D)                               such Letter of Credit is to be
denominated in a currency other than Dollars;


 


(E)                                 such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing
thereunder; or


 


(F)                                 a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time an Impacted Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrowers or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender.


 


(iv)                              The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.


 


(v)                                 The L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.


 


(vi)                              The L/C Issuer shall act on behalf of the Revolving
Credit Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.


 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension
Letters of Credit.


 


(i)                                     Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Principal Borrower delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer
of the Principal Borrower.  Such Letter
of Credit Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least two Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. 
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer:  (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing 


 


38

















 


thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; (H) the Borrower for whom such Letter of Credit is being requested
and (I) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (1) the Letter
of Credit to be amended; (2) the proposed date of amendment thereof (which
shall be a Business Day); (3) the nature of the proposed amendment; and (4) such
other matters as the L/C Issuer may require. 
Additionally, the Borrowers shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.


 


(ii)                                  Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
such Letter of Credit Application from or on behalf of a Borrower and, if not,
the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from any Revolving Credit Lender, the Administrative Agent or any Borrower, at least one Business Day prior
to the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the applicable Borrower or enter into the applicable amendment, as
the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Revolving Credit Lender’s
Applicable Revolving Credit Percentage times the amount of such Letter
of Credit.


 


(iii)                               If the
Principal Borrower so requests in any applicable Letter of Credit Application,
the L/C Issuer may, in its sole and absolute discretion, agree to issue a
Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the Borrowers shall not be required to make a specific request to the L/C
Issuer for any such extension.  Once an
Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however,
that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no
obligation at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Revolving Lenders have elected not
to permit such extension or (2) from the Administrative Agent, any
Revolving Credit Lender or the Borrowers that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in
each such case directing the L/C Issuer not to permit such extension.


 


(iv)                              Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the Borrowers
and the Administrative Agent a true and complete copy of such Letter of Credit
or amendment.


 


(c)                                  Drawings and Reimbursements; Funding of Participations.


 


(i)                                     Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrowers and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of
any payment by the L/C Issuer under a Letter of Credit (each such 


 


39














 


date, an “Honor Date”),
the Borrowers shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing.  If the Borrowers fail to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Credit Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Revolving
Credit Lender’s Applicable Revolving Credit Percentage thereof.  In such event, the Borrowers shall be deemed
to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan
Notice).  Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)                                  Each Revolving Credit Lender shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Applicable Revolving Credit Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Revolving Credit Lender
that so makes funds available shall be deemed to have made a Base Rate Loan to
the Borrowers in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)                               With respect to any Unreimbursed Amount that is not
fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrowers shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Credit Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this Section 2.03.


 


(iv)                              Until each Revolving Credit Lender funds its Revolving
Credit Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Revolving Credit Percentage of such
amount shall be solely for the account of the L/C Issuer.


 


(v)                                 Each Revolving Credit Lender’s obligation to make
Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance (other than the L/C Issuer’s gross negligence or willful
misconduct in issuing a Letter of Credit hereunder in violation of the
requirements of this Section 2.03), including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, any Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Credit Lender’s
obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrowers of a Committed Loan Notice ).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrowers to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.


 


(vi)                              If any Revolving Credit Lender fails to make available
to the Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such


 


40

















 


payment is
immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. 
If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Committed Loan included in
the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be.  A
certificate of the L/C Issuer submitted to any Revolving Credit Lender (through
the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall
be conclusive absent manifest error.


 


(d)                                 Repayment of Participations.


 


(i)                                     At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Revolving Credit Lender
such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrowers or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Revolving Credit Percentage thereof in
the same funds as those received by the Administrative Agent.


 


(ii)                                  If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Applicable Revolving Credit Percentage
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time
in effect.  The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.


 


(e)                                  Obligations Absolute. 
The obligation of the Borrowers to reimburse the L/C Issuer for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:


 


(i)                                     any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other Loan Document;


 


(ii)                                  the existence of any claim, counterclaim, setoff,
defense or other right that any Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;


 


(iii)                               any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such Letter
of Credit;


 


(iv)                              any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the L/C
Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or


 


41

















 


(v)                                 any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Borrower or any of their Subsidiaries.


 


The Borrowers shall
promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the
Borrowers’ instructions or other irregularity, the Borrowers will promptly (but
in any case within one (1) Business Day) notify the L/C Issuer.  The Borrowers shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.


 


(f)                                    Role of L/C Issuer. 
Each Lender and each Borrower agrees that, in paying any drawing under a
Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.  None of
the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving Credit Lenders or
the Required Revolving Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The Borrowers hereby assume all risks of the
acts or omissions of any beneficiary or transferee with respect to their use of
any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrowers’ pursuing such rights
and remedies as they may have against the beneficiary or transferee at law or
under any other agreement.  None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrowers may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrowers, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrowers which the
Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit.  In furtherance and not
in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a 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.


 


(g)                                 Cash Collateral. 
Upon the request of the Administrative Agent, (i) if the L/C Issuer
has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrowers shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  The Borrowers hereby grant to
the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  Cash
Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.  If at any
time the Administrative Agent determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than the Administrative
Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral, an amount equal to the
excess of (x) such aggregate Outstanding Amount over (y) the total
amount of funds, if any, then held as Cash Collateral that the Administrative
Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to
the extent permitted under applicable Laws, to reimburse the L/C Issuer.


 


(h)                                 Applicability of ISP. 
Unless otherwise expressly agreed by the L/C Issuer and the Borrowers
when a Letter of Credit is issued, the rules of the ISP shall apply to
each Letter of Credit.


 


42

















 


(i)                                     Letter of Credit Fees. 
The Borrowers shall pay to the Administrative Agent for the account of
each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount
available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.


 


(j)                                     Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer.  The Borrowers
shall, in connection with the issuance or extension (whether or not pursuant to
an automatic extension) of each Letter of Credit, pay directly to the L/C
Issuer for its own account a fronting fee for each Letter of Credit equal to
the greater of (i) $1,500.00 and (ii) 0.125% times the maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect with respect to such Letter of Credit).  Such fronting fee shall be payable upon
issuance or extension of the applicable Letter of Credit.  For the purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06.  In addition to the foregoing, the Borrowers
shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect.  Such customary fees
and standard costs and charges are due and payable on demand and are
nonrefundable.


 


(k)                                  Conflict with Issuer Documents. 
In the event of any conflict between the terms hereof and the terms of
any Issuer Document, the terms hereof shall control.


 


2.04                        Swing Line Loans.


 


(a)                                  The Swing Line. 
Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth
in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”)
to the Borrowers from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Revolving Credit Percentage of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit
Commitment; provided, however, that after giving effect to any
Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not
exceed the Revolving Credit Facility at such time, (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender
at such time, plus such Revolving Credit Lender’s Applicable Revolving
Credit Percentage of the Outstanding Amount of all L/C Obligations at such
time, plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans at such time shall
not exceed such Lender’s Revolving Credit Commitment and (iii) the Total
Outstandings shall not exceed the Borrowing Base, and provided  further
that the Borrowers shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. 
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall bear interest only
at a rate based on the Base Rate. 
Immediately upon the making of a Swing Line Loan, each Revolving Credit
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Swing Line Lender a risk participation in such Swing Line
Loan in an amount equal to the product of such Revolving Credit Lender’s
Applicable Revolving Credit Percentage times the amount of such Swing
Line Loan.


 


(b)                                 Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Principal Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the


 


43

















 


requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum
of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Principal Borrower. 
Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless the Swing Line Lender (A) has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Revolving Credit Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (1) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.04(a),
or (2) that one or more of the applicable conditions specified in Article IV
is not then satisfied, or (B) has, prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing, notified the Borrowers that it has elected,
in its discretion, not to fund the requested Swing Line Borrowing, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the
Borrowers.  The Swing Line Lender shall
not be required to fund any Swing Line Loan to the extent there is a
then-existing default of any Lender’s obligations to fund under any provision
hereof or any Lender is at such time an Impacted Lender hereunder.


 


(c)                                  Refinancing of Swing Line Loans.


 


(i)                                     The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrowers (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each Revolving Credit Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Revolving Credit Percentage of the amount of Swing Line
Loans then outstanding.  Such request
shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but subject
to the unutilized portion of the Revolving Credit Facility and the conditions
set forth in Section 4.02. 
The Swing Line Lender shall furnish the Borrowers with a copy of the
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent.  Each Revolving
Credit Lender shall make an amount equal to its Applicable Revolving Credit
Percentage of the amount specified in such Committed Loan Notice available to
the Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrowers in such amount.  The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


(ii)                                  If for any reason any Swing Line Loan cannot be
refinanced by such a Revolving Credit  Borrowing
in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Revolving Credit Lenders
fund its risk participation in the relevant Swing Line Loan and each Revolving
Credit Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.


 


(iii)                               If any Revolving Credit Lender fails to make available
to the Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
Swing Line Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or funded
participation in the relevant Swing Line


 


44

















 


Loan, as the case may
be.  A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.


 


(iv)                              Each Revolving Credit Lender’s obligation to make
Revolving Credit Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.04(c) shall be absolute
and unconditional (other than the Swing Line Lender’s gross negligence or
willful misconduct in advancing a Swing Line Loan hereunder in violation of the
requirements of this Section 2.04) and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, any
Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender’s obligation to make Revolving Credit Loans
pursuant to this Section 2.04(c) is subject to the conditions
set forth in Section 4.02. 
No such funding of risk participations shall relieve or otherwise impair
the obligation of the Borrowers to repay Swing Line Loans, together with
interest as provided herein.


 


(d)                                 Repayment of Participations.


 


(i)                                     At any time after any Revolving Credit Lender has
purchased and funded a risk participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Revolving Credit Lender its Applicable
Revolving Credit Percentage thereof in the same funds as those received by the
Swing Line Lender.


 


(ii)                                  If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Revolving Credit Lender shall pay to the Swing Line
Lender its Applicable Revolving Credit Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate.  The Administrative Agent
will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)                                  Interest for Account of Swing Line Lender. 
The Swing Line Lender shall be responsible for invoicing the Borrowers
for interest on the Swing Line Loans. 
Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such
Revolving Credit Lender’s Applicable Revolving Credit Percentage of any Swing
Line Loan, interest in respect of such Applicable Revolving Credit Percentage
shall be solely for the account of the Swing Line Lender.


 


(f)                                    Payments Directly to Swing Line Lender. 
The Borrowers shall make all payments of principal and interest in
respect of the Swing Line Loans directly to the Swing Line Lender.


 


2.05                        Prepayments.


 


(a)                                  Optional.


 


(i)                                     Subject to the last sentence of this Section 2.05(a)(i),
the Borrowers may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Term A Loans and Revolving Credit Loans in
whole or in part without premium or penalty; provided that (A) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(1) three (3) Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate
Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid and, if
Eurodollar Rate Loans are to be prepaid, the Interest


 


45

















 


Period(s) of such
Loans.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s ratable portion of such prepayment (based on such
Lender’s Applicable Percentage in respect of the relevant Facility).  If such notice is given by the Borrowers, the
Borrowers shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each prepayment of the Loans related to any
Facility pursuant to this Section 2.05(a) shall be applied to
the Lenders’ respective Loans under such Facility in accordance with their
respective Applicable Percentages in respect of such Facility.


 


(ii)                                  The Borrowers may, upon notice to the Swing Line
Lender (with a copy to the Administrative Agent), at any time or from time to
time, voluntarily prepay Swing Line Loans in whole or in part without premium
or penalty; provided that (A) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the date of the prepayment, and (B) any such prepayment shall be in a
minimum principal amount of $100,000. 
Each such notice shall specify the date and amount of such
prepayment.  If such notice is given by
the Borrowers, the Borrowers shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.


 


(b)                                 Mandatory.


 


(i)                                     Equity Issuances.  One hundred
percent (100%) of the Net Cash Proceeds received by the Principal Borrower from
a Public Offering meeting the conditions in Section 2.16 shall be
applied promptly upon (and, in any case, within one (1) Business Day
following) receipt thereof, to the prepayment of the Outstanding Amount of the
Loans and any L/C Borrowings. 
Prepayments made pursuant to this clause (b)(i) shall be applied
first to the Outstanding Amount under the Term A Facility and then to the
Revolving Credit Facility on a pro rata basis based on the Outstanding Amount
with respect each such Facility as of the date of such prepayment; provided,
however, that the Borrowers shall not be required to reduce the Outstanding
Amount to an amount less than the NY Maximum Principal Amount as a result of
such prepayment (provided, further, that any excess Net Cash
Proceeds resulting from the application of this proviso shall, first, be used
to Cash Collateralize any then-existing L/C Borrowings in accordance with the
provisions of this clause (b)(i) and second, be retained by the Borrowers
as working capital.  Prepayments of the
Term A Facility made pursuant to this Section 2.05(b)(i) shall
permanently reduce availability under the Term A Facility (subject to
subsequent increases in such Facility pursuant to the terms of Section 2.15
hereof); provided, that any portion of the Term A Facility which is
prepaid as a result of the application of this Section 2.05(b)(i) (the
“Convertible Term A Prepaid Principal”) shall be converted to Revolving
Credit Commitments pursuant to and in accordance with the provisions of Section 2.16.  Prepayments of the Revolving Credit Facility
made pursuant to this Section 2.05(b)(i), first, shall be applied
ratably to the outstanding L/C Borrowings and the Swing Line Loans, second,
shall be applied ratably to the outstanding Revolving Credit Loans, and, third,
shall be used to Cash Collateralize the remaining L/C Obligations; provided,
however, that the Borrowers shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(b)(i) unless
after the prepayment in full of the outstanding Revolving Credit Loans and
Swing Line Loans the L/C Obligations exceed the Letter of Credit Sublimit and
then, only such excess.


 


(ii)                                  Aggregate Revolving Credit Commitments.  
If for any reason the Total Revolving Credit Outstandings at any time
exceed the Aggregate Revolving Commitments then in effect, the Borrowers shall
immediately prepay Revolving Credit Loans or Swing Line Loans and/or Cash
Collateralize the L/C Obligations (such allocation of prepayments to be in the
discretion of the Borrowers) in an aggregate amount equal to such excess; provided,
however, that the Borrowers shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(b)(i) unless
after the prepayment in full of the Revolving Credit Loans and Swing Line Loans
the L/C Obligations exceed the Letter of Credit Sublimit and then, only such
excess.


 


(iii)                               Total Outstandings.  If for any
reason the Total Outstandings as of any date of determination exceed the
Borrowing Base as of such date, the Borrowers shall immediately prepay the


 


46

















 


Term A Loans, Revolving
Credit Loans or Swing Line Loans and/or Cash Collateralize the L/C Obligations
(such allocation of prepayments to be in the discretion of the Borrowers) in an
aggregate amount equal to such excess; provided, however, that
the Borrowers shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(b)(iii) unless after the
prepayment in full of the Term A Loans, Revolving Credit Loans and Swing Line
Loans the remaining L/C Obligations exceed the Letter of Credit Sublimit
and then, only such excess.


 


2.06                        Termination or Reduction of Commitments.


 


(a)                                  Optional.  The Borrowers
may, upon notice to the Administrative Agent, terminate the Revolving Credit
Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or from
time to time permanently reduce the Revolving Credit Facility, the Letter of
Credit Sublimit or the Swing Line Sublimit; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
three (3) Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers
shall not terminate or reduce (A) the Revolving Credit Facility if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Credit Outstandings would exceed the Revolving Credit Facility, (B) the
Letter of Credit Sublimit if, after giving effect thereto, the Outstanding
Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed
the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit.


 


(b)                                 Mandatory.


 


(i)                                     The then-existing
aggregate Term A Commitments shall be automatically and permanently reduced to
zero  on the date of each Term A Borrowing.


 


(ii)                                  If after giving effect to any reduction or termination
of Revolving Credit Commitments under this Section 2.06, the Letter
of Credit Sublimit or the Swing Line Sublimit exceeds the Revolving Credit
Facility at such time, the Letter of Credit Sublimit or the Swing Line
Sublimit, as the case may be, shall be automatically reduced by the amount of
such excess.


 


(c)                                  Application of Commitment Reductions;
Payment of Fees.  The Administrative Agent will promptly notify
the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Revolving Credit Commitment under this Section 2.06.  Upon any reduction of the Revolving Credit
Commitments, the Revolving Credit Commitment of each Revolving Credit Lender
shall be reduced by such Lender’s Applicable Revolving Credit Percentage of
such reduction amount.  All fees in
respect of the Revolving Credit Facility accrued until the effective date of
any termination of the Revolving Credit Facility shall be paid on the effective
date of such termination.


 


2.07                        Repayment of Loans.


 


(a)                                  The Borrowers shall repay to the Lenders
on the Maturity Date the aggregate principal amount of all Loans outstanding on
such date.


 


(b)                                 The Borrowers shall repay each Swing Line
Loan on the earlier to occur of (i) the date five (5) Business Days
after such Loan is made, (ii) the Maturity Date and (iii) the date on
which any such Swing Line Loan is required to be repaid in order for the
Borrowers to remain in compliance with the provisions of Section 2.04
and 2.05(b) hereof.


 


2.08                        Interest.


 


(a)                                  Applicable Interest Rates. 
Subject to the provisions of Section 2.08(b), (i) each
Eurodollar Rate Loan under a Facility shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate
for such Facility; (ii) each Base Rate Loan under a Facility shall bear
interest on the outstanding principal amount thereof from the applicable


 


47

















 


borrowing date at a rate
per annum equal to the Base Rate plus the Applicable Rate for such
Facility; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate for the
Revolving Credit Facility.


 


(b)                                 Default Rate Interest; Failure to Make
Required Payments; Unpaid Interest.


 


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


 


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


 


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


 


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


 


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


 


2.09                        Fees. 
In addition
to certain fees described in Sections 2.03(i) and (j):


 


(a)                                  Revolver Unused Fees. 
The Borrowers shall, for each day during the term of this Agreement on
which there exist any Revolving Credit Commitments, pay to the Administrative
Agent for the account of each Lender holding a Revolving Credit Commitment (in
accordance with such Lender’s Applicable Revolving Credit Percentage thereof),
an unused fee (the “Revolver Unused Fee”) equal to the Unused Rate times
the actual daily amount by which the Aggregate Revolving Credit Commitments
exceed the Total Revolving Credit Outstandings (less the amount of any
outstanding Swing Line Loans) as of such date. 
The Revolver Unused Fee shall accrue at all times during the term of
this Agreement on which there exist any Revolving Credit Commitments, including
at any time during which one or more of the conditions in Article V
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing on March 31,
2009 (with such initial payment to include such fees commencing from the
Closing Date), and on the Maturity Date. 
The Revolver Unused Fee shall be calculated quarterly in arrears, based
on the applicable daily Unused Rates during each day of such quarter.


 


(b)                                 Other Fees.


 


(i)                                     The Borrowers shall pay to BAS and the Administrative
Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter; provided, that such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever; and


 


(ii)                                  the Borrowers shall pay to the Lenders such fees as
shall have been separately agreed upon in writing (and approved by the
Administrative Agent and BAS) in the amounts and at the times so specified;
provided, that such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.


 


48

















 


2.10                        Computation of Interest and Fees; Retroactive
Adjustments of Applicable Rate.


 


(a)                                  All computations of interest for Base
Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed.  All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 


(b)                                 If, as a result
of any restatement of or other adjustment to the financial statements of the
Principal Borrower or for any other reason, the Borrowers or the Lenders
determine that (i) the Consolidated Leverage Ratio as calculated by the
Principal Borrower as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Leverage Ratio would have resulted in
higher pricing for such period, the Borrowers shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account
of the applicable Lenders or the L/C Issuer, as the case may be, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrowers under the
Bankruptcy Code of the United States, automatically and without further action
by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to
the excess of the amount of interest and fees that should have been paid for
such period over the amount of interest and fees actually paid for such
period.  This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the
case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(b) or
under Article VIII.  The
Borrowers’ obligations under this paragraph shall survive the termination of
the Aggregate Commitments and the repayment of all other Obligations hereunder.


 


2.11                        Evidence of Debt.


 


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


 


(b)                                 In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.


 


2.12                        Payments Generally; Administrative Agent’s
Clawback.


 


(a)                                  General.  All payments
to be made by the Borrowers shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each Lender its Applicable Percentage in respect of the
relevant Facility (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending
Office.  All payments received by the


 


49














 


Administrative Agent
after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrowers
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.


 


(b)                                 Payments and Funding by Parties.


 


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


 


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


 


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


 


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


 


(d)                                 Obligations of Lenders Several. 
The obligations of the Lenders hereunder to make Term A Loans and
Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments


 


50

















 


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


 


(e)                                  Funding Source. 
Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.


 


(f)                                    Insufficient Funds. 
If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward payment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.


 


2.13                        Sharing of Payments by Lenders.


 


If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of (a) Obligations in respect of any the Facilities due and
payable to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time to (ii) the
aggregate amount of the Obligations in respect of the Facilities due and
payable to all Lenders hereunder and under the other Loan Documents at such
time) of payments on account of the Obligations in respect of the Facilities
due and payable to all Lenders hereunder and under the other Loan Documents at
such time obtained by all the Lenders at such time or (b) Obligations in
respect of any of the Facilities owing (but not due and payable) to such Lender
hereunder and under the other Loan Documents at such time in excess of its
ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the
aggregate amount of the Obligations in respect of the Facilities owing (but not
due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on
account of the Obligations in respect of the Facilities owing (but not due and
payable) to all Lenders hereunder and under the other Loan Documents at such
time obtained by all of the Lenders at such time then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as
the case may be, provided that:


 


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


 


(ii)                                  the provisions of this Section shall not be
construed to apply to (A) any payment made by the Borrowers pursuant to
and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C Obligations or
Swing Line Loans to any assignee or participant, other than to the Borrowers or
any of their Subsidiaries thereof (as to which the provisions of this Section shall
apply).


 


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


 


51

















 


2.14                        Maturity Date; Extended Maturity Date.


 


(a)                                  Initial
Maturity Date.   Subject to
extension pursuant to the terms and conditions set forth in clause (b) of
this Section 2.14 and subject to the provisions of clause (c) of
this Section 2.14, the Borrowers shall, on April 24, 2012  (the “Initial Maturity Date”),
cause the Obligations (including, without limitation, all outstanding principal
and interest on the Loans and Swing Line Loans and all fees, costs and expenses
due and owing under the Loan Documents) to be Fully Satisfied.


 


(b)                                 Extended
Maturity Date Option.   Not more
than 90 days and not less than 60 days prior to the Initial Maturity Date, the
Borrowers may request in writing that the Lenders extend the term of this
Agreement (in respect
of both the Revolving Credit Facility and the Term A Facility (if not
previously terminated)) to April 24,
2013 (the end of such period being the “Extended Maturity Date”).  Each Lender agrees that the Maturity
Date for the Facilities shall be extended following such a request from the
Borrowers subject to satisfaction of
the following terms and conditions:


 


(i)                                     no Default or
Event of Default shall have occurred and be continuing on the date of such
extension and after giving effect thereto;


 


(ii)                                  each of the
Borrowing Base Properties shall have been reappraised on or prior to the
Existing Maturity Date (but not more than 90 days prior to such date) pursuant
to “as-is” FIRREA-compliant MAI appraisals in form, substance and from an
appraiser acceptable to the Administrative Agent (such appraisals to be
commissioned by the Administrative Agent and paid for by the Borrowers);


 


(iii)                               the Total
Outstandings shall be less than the Borrowing Base, as adjusted in connection
with the appraisals obtained pursuant to subclause (ii) above;


 


(iv)                              the Borrowers
shall, at the Existing Maturity Date, pay to the Administrative Agent (for the
pro rata benefit of the Lenders based on their respective Aggregate Facility
Pro Rata Share as of such date) an extension fee equal to (A) 50.0 basis
points, multiplied by (B) the Aggregate Credit Exposures as of such date
and shall have paid all other outstanding fees, expenses or other amounts for
which the Borrowers are responsible hereunder; and


 


(v)                                 the Borrowers shall deliver to the Administrative
Agent a certificate of each Borrower dated as of the Existing Maturity Date (in
sufficient copies for each Lender) signed by a Responsible Officer of each such
Borrower (A) certifying and attaching the resolutions adopted by such Borrower approving or consenting to
such extension and (B) certifying that, before and after giving effect to
such extension, (1) the representations and warranties contained in Article V
and the other Loan Documents are true and correct in all material respects on
and as of the Existing Maturity Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.14, the representations and warranties
contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section 6.01, and (2) no
Default exists.


 


(c)                                  Notification of
Extension.  The
Administrative Agent shall notify the Principal Borrower and each of the
Lenders of the effectiveness of an extension pursuant to this Section 2.14.


 


(d)                                 Satisfaction of
Obligations Upon Acceleration.  Notwithstanding anything contained herein or
in any other Loan Document to the contrary, to the extent any of the
Obligations are accelerated pursuant to the terms hereof (including, without
limitation, Section 8.02 hereof), the Borrowers shall, immediately
upon the occurrence of such acceleration, cause such accelerated Obligations to
be Fully Satisfied.


 


(e)                                  Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


52

















 


2.15                        Increase in Facility.


 


(a)                                  Request for Increase. 
Provided there exists no Default, upon written notice to the
Administrative Agent (which shall promptly notify each of the Lenders), the
Borrowers may from time to time request an increase in the Revolving Credit
Facility and, to the extent not previously terminated in connection with the
exercise of the conversion rights referenced in Section 2.16 below,
the Term A Facility by an aggregate amount (for all such requests) which causes
the Aggregate Credit Exposures hereunder, plus the amount of any
then-applicable Convertible Term A Prepaid Principal to equal an amount not
greater than $500,000,000; provided that:


 


(i)                                     any such request for an increase shall be
in a minimum amount of $10,000,000;


 


(ii)                                  subject to the provisions of Section 2.01(d),
each Lender shall have the opportunity, pursuant to such notice, to commit to
and fund a percentage of such requested increase that is not less than its
Applicable Percentage with respect to both any Revolving Credit Facility
increase and any increase in the Term A Facility;


 


 (iii)                            to the extent the Term A Facility has not
been terminated in connection with a conversion as provided in Section 2.16
below, any increase in the Facilities pursuant to this Section 2.15
must increase the Aggregate Credit Exposure with respect to each Facility by an
equal amount and following conversion as provided in Section 2.16,
100% of any increase pursuant to this Section 2.15 shall be
allocated to the Revolving Credit Facility;


 


(iv)                              no increase in the Facilities pursuant to this Section 2.15
shall be permitted following the Initial Maturity Date; and


 


(v)                                 the Borrowers may make a maximum of three such
requests during the term hereof.


 


At the time of sending
the notice required pursuant to this clause (a), the Borrowers (in consultation
with the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten (10) Business
Days from the date of delivery of such notice to the Lenders).


 


(b)                                 Lender
Elections.  Each Lender
shall notify the Administrative Agent within such time period whether or not it
agrees to commit to any requested increase in the Facilities and, if so,
whether by an amount equal to, greater than, or less than the amount which
corresponds to such Lender’s Aggregate Facility Pro Rata Share of such
requested increase; provided, that, as noted above, any increase in a
Lender’s Aggregate Facility Pro Rata Share with respect to the Facilities shall
be subject to the terms of Section 2.01(d)).  Any Revolving Credit Lender not responding
within such time period shall be deemed to have declined to make any additional
commitment or funding of the Facilities at such time.


 


(c)                                  Notification by
Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrowers and each Lender of the Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase, and subject to the approval of the Administrative Agent,
the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Borrowers may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


(d)                                 Effective Date
and Allocations.  If the one
or more of the Facilities are increased in accordance with this Section, the
Administrative Agent and the Borrowers shall determine the effective date (each
an “Increase Effective Date”)
and the final allocation of such increase among the Lenders (provided,
that such allocations must be in accordance with the terms of Section 2.01(d)).  The Administrative Agent shall promptly
notify the Borrowers and the Lenders of the final allocations of such increase
and the Increase Effective Date.


 


(e)                                  Conditions to
Effectiveness of Increase; Funding of Increase.  As a condition precedent to any such
increase, the Borrowers shall deliver to the Administrative Agent a certificate
of each Borrower dated as of the applicable Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of each such
Borrower (i) certifying and attaching the resolutions adopted by such
Borrower approving or consenting to such increase, and (ii) certifying
that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other
Loan Documents are true and correct in all material respects on and


 


53

















 


as
of the Increase Effective Date (after giving effect to any amendments or
updates then made to Schedule 1.01(a), 5.10, 5.13(a), 5.13(b) or
5.23), except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.15,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01
and (B) no Default exists or will exist as a result of the funding of such
requested increase.  In addition, the
Borrowers shall deliver to the Administrative Agent a Compliance Certificate
showing that, on a Pro Forma Basis (assuming effectiveness of the increases and
any funding of Loans to occur as of the Increase Effective Date) the Borrowers
will be in compliance with the financial covenants contained herein and with
the restrictions on the Outstanding Amounts contained herein.  Any increase in the Term A Facility
consummated pursuant to this Section 2.15 shall be fully funded by
the applicable Lenders as of the Increase Effective Date related thereto in
accordance with the terms of this Article II.


 


(f)                                    Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


2.16                        Conversion of Term A Facility Amounts  into Revolving Credit Facility
Commitments/Outstandings.


 


(a)                                  Conditions; Amounts Available for
Conversion.  On the Business Day following the
establishment of a Public Market for Equity Interests of the Principal Borrower
pursuant to a single Public Offering which, in the aggregate, results in Net
Cash Proceeds of not less than $150,000,000 and the application of such
proceeds in accordance with the terms of Section 2.05(b)(i), 100%
of the then-outstanding Term A Loans and 100% of the then-existing Convertible
Term A Prepaid Principal shall be automatically converted to Revolving Credit
Commitments and (in the case of the funded portion of the Term A Loans being
converted) Revolving Credit Loans hereunder, all as provided in this Section 2.16;
provided, that, notwithstanding anything to the contrary contained
herein, the conversion provided in this Section 2.16 shall,
immediately upon the effectiveness thereof, permanently terminate the Term A
Facility and permanently reduce to zero the amount of Convertible Term A
Prepaid Principal.


 


(b)                                 Lenders’
Acknowledgements Concerning Conversion Rights.  Each Lender that, from time to time, holds any portion
of a Term A Loan hereunder hereby acknowledges and agrees that (i) such
Lender’s Term A Loans may be subject to conversion to Revolving Credit
Commitments and Revolving Credit Loans pursuant to this Section 2.16;
and (ii) to the extent any portion of its Term A Loans are prepaid in
connection with Section 2.05(b)(i) hereof, such prepaid
portion of its Term A Loans shall constitute contingent Revolving Credit
Commitments that may arise in connection with the application of this Section 2.16
(upon which date such Convertible Term A Prepaid Principal shall convert to
being Revolving Credit Commitments.


 


(c)                                  Conversion of
Convertible Term A Prepaid Principal.  The allocation among the Lenders of the Revolving
Credit Commitments into which such Convertible Term A Prepaid Principal is
converted shall be on a pro rata basis based on each such Lender’s share of the
aggregate amount of Convertible Term A Prepaid Principal (which share shall be
the actual amount of Convertible Term A Prepaid Principal received by each such
Lender) existing as of the date of a requested conversion and (ii) such
conversion shall result in the converted portion of the Convertible Term A
Prepaid Principal being deemed to be unfunded Revolving Credit Commitments of
such Lenders (which amounts shall, immediately thereafter, be subject to the
provisions of clause (e) below).


 


(d)                                 Conversion of
Term A Loans.  The allocation of among the Lenders of
the Revolving Credit Commitments and related Revolving Credit Loans shall be
pro rata based on each such Lender’s Applicable Percentage of the
then-outstanding Term A Loans (prior to conversion); and (ii) such
conversion shall result in the converted portion of the Term A Loans being
deemed to be fully funded Revolving Credit Commitments and related Revolving
Credit Loans of such Lenders (which amounts shall, immediately thereafter, be
subject to the provisions of clause (e) below).


 


(e)                                  Conversion
Mechanics.  The applicable Convertible Term A Prepaid
Principal and Term A Loans shall convert to Revolving Credit Commitments
hereunder and any amount of such outstanding Term A Loans shall be, commencing
as of such conversion date, deemed to be Revolving Credit Loans existing under
the Revolving Credit Facility of the same Type and Interest Period as the
previously outstanding Term A Loans and shall no longer, commencing as of such
conversion date, be considered Term A Loans for purposes hereof.


 


54

















 


ARTICLE III


 


TAXES, YIELD
PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Payments Free of Taxes; Obligation to
Withhold; Payments on Account of Taxes.


 


(i)                                     Any and all payments by or on account of any
obligation of the Borrowers hereunder or under any other Loan Document shall to
the extent permitted by applicable Laws be made free and clear of and without
reduction or withholding for any Taxes. 
If, however, applicable Laws require the Borrowers or the Administrative
Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by the Borrowers or the Administrative
Agent, as the case may be, upon the basis of the information and documentation
to be delivered pursuant to subsection (e) below.


 


(ii)                                  If the Borrowers or the Administrative Agent shall be
required by the Code to withhold or deduct any Taxes, including both United
States Federal backup withholding and withholding taxes, from any payment, then
(A) the Administrative Agent shall withhold or make such deductions as are
determined by the Administrative Agent to be required based upon the
information and documentation it has received pursuant to subsection (e) below,
(B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Code,
and (C) to the extent that the withholding or deduction is made on account
of Indemnified Taxes or Other Taxes, the sum payable by the Borrowers shall be
increased as necessary so that after any required withholding or the making of
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or L/C Issuer, as
the case may be, receives an amount equal to the sum it would have received had
no such withholding or deduction been made.


 


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


 


(c)                                  Tax Indemnifications.


 


(i)                                     Without limiting the provisions of subsection (a) or
(b) above, the Borrowers shall and do hereby, jointly and severally, indemnify the Administrative Agent, each
Lender and the L/C Issuer, and shall make payment in respect thereof within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) withheld or deducted by
any Borrower or the Administrative Agent or paid by the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  The Borrowers shall, jointly and severally, and do hereby, indemnify the
Administrative Agent, and shall make payment in respect thereof within 10 days
after demand therefor, for any amount which a Lender or the L/C Issuer for any
reason fails to pay indefeasibly to the Administrative Agent as required by
clause (ii) of this subsection.  A
certificate as to the amount of any such payment or liability delivered to the
Borrowers by a Lender or the L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.


 


(ii)                                  Without limiting the provisions of subsection (a) or
(b) above, each Lender and the L/C Issuer shall, and does hereby,
indemnify the Borrowers and the Administrative Agent, and shall make payment in
respect thereof within 10 days after demand therefor, against any and all Taxes
and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and


 


55

















 


disbursements of any
counsel for the Borrowers or the Administrative Agent) incurred by or asserted
against the Borrowers or the Administrative Agent by any Governmental Authority
as a result of the failure by such Lender or the L/C Issuer, as the case may
be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender or the L/C Issuer, as
the case may be, to the Borrowers or the Administrative Agent pursuant to
subsection (e).  Each Lender and the L/C
Issuer hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender or the L/C Issuer, as the case may
be, under this Agreement or any other Loan Document against any amount due to
the Administrative Agent under this clause (ii).  The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.


 


(d)                                 Evidence of Payments. 
Upon request by the Borrowers or the Administrative Agent, as the case
may be, after any payment of Taxes by the Borrowers or the Administrative Agent
to a Governmental Authority as provided in this Section 3.01 the
Borrowers shall deliver to the Administrative Agent or the Administrative Agent
shall deliver to the Borrowers, as the
case may be, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of any return
required by Law to report such payment or other evidence of such payment
reasonably satisfactory to the Borrowers or the Administrative Agent, as the
case may be.


 


(e)                                  Status of Lenders; Tax Documentation.


 


(i)                                     Each Lender shall deliver to the Borrowers and the
Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrowers or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable Laws or
by the taxing authorities of any jurisdiction and such other reasonably
requested information as will permit the Borrowers or the Administrative Agent,
as the case may be, to determine (A) whether or not payments made
hereunder or under any other Loan Document are subject to Taxes, (B) if
applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the
Borrowers pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.


 


(ii)                                  Without limiting the generality of the foregoing, if a
Borrower is resident for tax purposes in the United States,


 


(A)                              any Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the Borrowers
and the Administrative Agent executed originals of Internal Revenue Service Form W-9
or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrowers or the Administrative Agent as will
enable the Borrowers or the Administrative Agent, as the case may be, to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements; and


 


(B)                                each Foreign Lender that is entitled under the Code or
any applicable treaty to an exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document shall deliver to
the Borrowers and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrowers or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:


 


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


 


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(II)                                executed originals of Internal Revenue
Service Form W-8ECI,


 


(III)                            executed originals of Internal Revenue
Service Form W-8IMY and all required supporting documentation,


 


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


 


(V)                                executed originals of any other form
prescribed by applicable Laws as a basis for claiming exemption from or a
reduction in United States Federal withholding tax together with such
supplementary documentation as may be prescribed by applicable Laws to permit
the Borrowers or the Administrative Agent to determine the withholding or
deduction required to be made.


 


(iii)                               Each Lender shall promptly (A) notify the
Borrowers and the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (B) take
such steps as shall not be materially disadvantageous to it, in the judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that any Borrower or the Administrative Agent make any withholding
or deduction for taxes from amounts payable to such Lender.


 


(f)                                    Treatment of Certain Refunds. 
Unless required by applicable Laws, at no time shall the Administrative
Agent have any obligation to file for or otherwise pursue on behalf of a Lender
or the L/C Issuer, or have any obligation to pay to any Lender or the L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender or the L/C Issuer, as the case may be. If the Administrative
Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have paid
additional amounts pursuant to this Section, it shall pay to the Borrowers an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrowers under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), provided
that the Borrowers, upon the request of the Administrative Agent, such Lender
or the L/C Issuer, agree to repay the amount paid over to any Borrower (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to any Borrower or any other Person.


 


3.02                        Illegality.


 


If any Lender determines
that any Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office
to make, maintain or fund Eurodollar Rate Loans, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority
has imposed material restrictions on the authority of such Lender to purchase
or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrowers through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all


 


57

















 


Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. 
Upon any such prepayment or conversion, the Borrowers shall also pay
accrued interest on the amount so prepaid or converted.


 


3.03                        Inability to Determine Rates.


 


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


 


3.04                        Increased Costs; Reserves on Eurodollar Rate
Loans.


 


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


 


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


 


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


 


(iii)                               impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this Agreement
or Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result of any of
the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrowers will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


 


(b)                                 Capital Requirements. 
If any Lender or the L/C Issuer determines that any Change in Law
affecting such Lender or the L/C Issuer or any Lending Office of such Lender or
such Lender’s or the L/C Issuer’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or
the L/C Issuer’s holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
L/C Issuer, to a level below that which such Lender or the L/C Issuer or such
Lender’s or the L/C Issuer’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or the L/C Issuer’s
policies and the


 


58

















 


policies of such Lender’s
or the L/C Issuer’s holding company with respect to capital adequacy), then
from time to time the Borrowers will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
for any such reduction suffered.


 


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


 


(d)                                 Delay in Requests. 
Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrowers shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).


 


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


 


3.05                        Compensation for Losses.


 


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


 


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


 


(b)                                 any failure by the Borrowers (for a
reason other than the failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrowers; or


 


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


 


including any loss of
anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained.  The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes of
calculating amounts payable by the Borrowers to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Rate  for such Loan by a


 


59














 


matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact
so funded.


 


3.06        Mitigation Obligations; Replacement
of Lenders.


 


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


 


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


 


3.07        Survival.


 


All of the Borrowers’
obligations under this Article III shall survive termination of the
Aggregate Commitments, repayment of all other Obligations hereunder and
resignation of the Administrative Agent.


 


ARTICLE IV


 


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS


 


4.01        Conditions of Initial Credit
Extension.


 


The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:


 


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


 


(i)                                     executed counterparts of this Agreement,
sufficient in number for distribution to the Administrative Agent, each Lender
and the Principal Borrower;


 


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


 


(iii)                               a pledge and security agreement, in substantially the
form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered
pursuant to Section 6.12, in each case as amended, the “Pledge Agreement”), duly executed by each Person
required to execute same pursuant to the terms hereof, together with:


 


(A)          all certificates evidencing any certificated Pledged
Interests pledged to the Administrative Agent pursuant to the Pledge Agreement,
together with duly executed in blank, undated stock powers attached thereto;


 


60

















 


(B)           proper Financing
Statements in form appropriate for filing under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem necessary or desirable in
order to perfect the Liens created under the Pledge Agreement, covering the
Collateral described in the Pledge Agreement,


 


(C)           updated searches of Uniform
Commercial Code filings in the jurisdiction of organization of each Borrower
and each jurisdiction where any Collateral is located or where a filing would
need to be made in order to perfect the Administrative Agent’s security
interest in the Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than Permitted Liens,


 


(D)          duly executed notices of grant of
security interest in the form required by the Pledge Agreement as are
necessary, as determined by Administrative Agent, to perfect the Administrative
Agent’s security interest in the Collateral, duly executed consents as are
necessary, as determined by Administrative Agent, to perfect the Administrative
Agent’s security interest in the Collateral and evidence of the completion of
all other actions, recordings and filings of or with respect to the Pledge
Agreement that the Administrative Agent may deem necessary or desirable in
order to perfect the Liens created thereby,


 


(E)           evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to perfect the
Liens created under the Pledge Agreement has been taken (including receipt of
duly executed payoff letters, UCC-3 termination statements and landlords’ and
bailees’ waiver and consent agreements);


 


(iv)                              deeds of trust, trust deeds, deeds to
secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in
substantially the form of Exhibit H (with such changes as may be
satisfactory to the Administrative Agent and its counsel to account for local
law matters) and covering each of the Borrowing Base Properties existing as of
the Closing Date (together with the Assignments of Leases and Rents referred to
therein, if any, and each other mortgage delivered pursuant to Section 6.12,
in each case as amended, the “Mortgages”), duly executed by the appropriate
Borrower, together, in each case, with the Borrowing Base Deliverables related
thereto.


 


(v)                                 copies of the Organization Documents of
each Borrower certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation or organization, where applicable, and certified by a secretary
or assistant secretary of such Borrower to be true and correct as of the
Closing Date;


 


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


 


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


 


(viii)                        a favorable opinion of counsel to the
Borrowers, addressed to the Administrative Agent and each Lender, as to the
matters set forth in Exhibit F-1 and such other matters concerning
the Borrowers and the Loan Documents as the Required Lenders may reasonably
request;


 


(ix)                                a favorable opinion of Administrative
Agent-approved local counsel to the Borrowers
in each state in which any Borrowing Base Property is located, addressed to the
Administrative Agent and 


 


61

















 


each Lender, as to the matters set forth in Exhibit F-2 and
such other matters concerning the Borrowers
and the Loan Documents as the Required Lenders may request;


 


(x)            a certificate of a Responsible Officer of each Borrower
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by such
Borrower and the validity against such Borrower of the Loan Documents to which
it is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals
are so required;


 


(xi)           a certificate signed by a Responsible Officer of the
Principal Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied and (B) that there has been no event or
circumstance since the date of the Audited Financial Statements that has had or
could be reasonably expected to have, either individually or in the aggregate,
a Material Adverse Effect;


 


(xii)          a business plan and budget of the Principal Borrower and its Subsidiaries on a consolidated
basis, including forecasts prepared by management of the Principal
Borrower, of
consolidated balance sheets and statements of income or operations and cash
flows of the Principal Borrower and its Subsidiaries on a quarterly basis for the
first year following the Closing Date;


 


(xiii)         certificates attesting to the Solvency of each Borrower
before and after giving effect to the Loan Documents, from its chief financial
officer;


 


(xiv)        certified copies of each employment agreement and other
compensation arrangement, in each case, if any, with each officer of any
Borrower or any of its Subsidiaries as the Administrative Agent shall request;


 


(xv)         evidence that all insurance required to
be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of
insurance, naming the Administrative Agent, on behalf of the Lenders, as an
additional insured or loss payee, as the case may be, under all insurance
policies maintained with respect to the assets and properties of the Borrowers
that constitutes Collateral;


 


(xvi)        a Compliance Certificate (prepared on a Pro Forma
Basis) duly certified by the chief executive officer, chief financial officer,
treasurer or controller of the Principal Borrower relating to the initial
Credit Extension based on the Audited Financial Statements;


 


(xvii)       certified copies of any agreements then
in existence for the sale of assets of the Borrowers after the day of the
initial Credit Extension; and


 


(xviii)      such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender
reasonably may require.


 


(b)                                 (i) All fees required to be paid to
the Administrative Agent and BAS on or before the Closing Date shall have been
paid and (ii) all fees required to be paid to the Lenders on or before the
Closing Date shall have been paid.


 


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


 


(d)                                 The Closing Date shall have occurred on or before April 30, 2009.


 


62

















 


(e)           The
Lenders shall have completed a due diligence investigation of the Borrowers and
their respective Subsidiaries in scope, and with results, satisfactory to the
Lenders, and shall have been given such access to the management, records,
books of account, contracts and properties of the Borrowers and their
respective Subsidiaries and shall have received such financial, business and
other information regarding each of the foregoing Persons and businesses as
they shall have requested; and no changes or developments shall have occurred,
and no new or additional information shall have been received or discovered by
the Administrative Agent or the Lenders regarding the Borrowers and their respective
Subsidiaries after December 31, 2008 that (A) either individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect
or (B) purports to adversely affect the Facilities, and nothing shall have
come to the attention of the Lenders during the course of such due diligence
investigation to lead them to believe that the Information Memorandum was or
has become misleading, incorrect or incomplete in any material respect.


 


(f)            The
Lenders shall approve the forms of Business Management Agreement and Property
Management Agreement between the Principal Borrower and Reit Management &
Research LLC (collectively, the “Management Agreements”) most-recently
delivered to them by the Borrowers on or prior to the date hereof.


 


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


 


4.02        Conditions to all Credit Extensions.


 


The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:


 


(a)           The
representations and warranties of the Borrowers contained in Article V
or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit Extension
(after giving effect to any amendments or updates then made to Schedule
1.01(a), 5.06, 5.09, 5.13(a) and/or 5.13(b)),
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
provided, that in the case of financial statements furnished pursuant to
clause (b) of Section 6.01, the representations as to such
financial statements are qualified by such financial statements being subject
to the absence of footnotes and to normal year end adjustments.


 


(b)           There
shall not have been commenced against any Consolidated Party an involuntary
case under any applicable Debtor Relief Law, now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its property or for the winding up or
liquidation of its affairs, and such involuntary case or other case, proceeding
or other action shall remain undismissed.


 


(c)           Assuming
the effectiveness of the requested Credit Extension, (i) the Total
Outstandings as of such date do not exceed the Borrowing Base; and (ii) the
Total Revolving Credit Outstandings do not exceed the Aggregate Revolving
Commitments.


 


(d)           No
Default or Event of Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.


 


(e)           The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with
the requirements hereof.


 


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Each Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted
by the Borrowers shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V


 


REPRESENTATIONS
AND WARRANTIES


 


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


 


5.01        Existence, Qualification and Power.


 


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


 


5.02        Authorization; No Contravention.


 


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


 


5.03        Governmental Authorization; Other
Consents.


 


No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or
enforcement against, any Borrower of this Agreement or any other Loan Document,
(b) the grant by any Borrower of the Liens granted by it pursuant to the
Collateral Documents, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority nature
thereof) or (d) the exercise by the Administrative Agent or any Lender of
its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings
listed on Schedule 5.03, all of which have been duly obtained,
taken, given or made and are in full force and effect and any notices and
filings required to be given or made in connection with the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents or
the remedies in respect of the Collateral pursuant to the Collateral Documents.


 


5.04        Binding Effect.


 


This Agreement has been,
and each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Borrower that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Borrower, enforceable against each Borrower that is party
thereto in accordance with its terms,  except to the extent enforcement may be 


 


64

















 


limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, marshaling, moratorium or
other similar laws affecting the enforcement generally of the rights and
remedies of creditors and secured parties or the obligations of debtors, and (b) general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law).


 


5.05        Financial Statements; No Material
Adverse Effect.


 


(a)           The Audited
Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of
the Principal Borrower and the Certain Government Properties (wholly owned by
HRPT Properties Trust), as the case may be, as of the date thereof and results
of operations, in the case of the Certain Government Properties, for the period
covered thereby in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein.


 


(b)           The Borrowers
have no Indebtedness as of the date hereof.


 


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


 


(d)           Each delivery
hereunder by any Borrower of any financial statements, compliance certificates
or other calculations involving pro forma determinations or calculations fairly
presents the pro forma financial condition of such Borrower and/or its
Subsidiaries (as applicable) as at the date set forth thereon.


 


(e)           The consolidated and consolidating forecasted balance
sheets, statements of income and
cash flows of the Principal Borrower
and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(d) were
prepared in good faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Principal Borrower’s
best estimate of its future financial condition and performance.


 


(f)            The financial
statements delivered pursuant to Section 6.01(a) and (b) have
been prepared in accordance with GAAP (except as may otherwise be permitted
under Section 6.01(a) and (b)) and present fairly (on
the basis disclosed in the footnotes to such financial statements) the
consolidated financial condition, results of operations and cash flows of the
Consolidated Parties as of such date and for such periods.


 


5.06        Litigation.


 


There are no actions,
suits, proceedings, claims or disputes pending or, to the knowledge of the Borrowers
after due and diligent investigation, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against any Borrower or
any of their Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement or any other Loan Document, or (b) except as specifically disclosed in  Schedule 5.06 (the “Disclosed Litigation”),
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect, and there has been no material adverse change in the status, or
financial effect on any Borrower or any Subsidiary thereof, of the matters
described in Schedule 5.06.


 


5.07        No Default.


 


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


 


5.08        Ownership of Property; Liens;
Investments.


 


(a)           Each Borrower has
good record and marketable title in fee simple to, or valid leasehold interests
in, all of the Borrowing Base Properties and all other real property necessary
or used in the ordinary conduct of its 


 


65

















 


business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. 
Each of the Borrowing Base Properties is either wholly owned in fee by a
Borrower or ground leased by a Borrower pursuant to a long term ground lease
which has been designated as an Approved Ground Lease, in each case subject to
no Liens other than Permitted Liens.  To
the extent a Borrowing Base Property is leased by a Borrower pursuant to an
Approved Ground Lease, (i) such lease is in full force and effect and
remains unmodified except to the extent disclosed to the Administrative Agent
in writing; (ii) no rights in favor of the applicable Borrower lessee have
been waived, canceled or surrendered; (iii) no election or option under
such ground lease has been exercised by the Borrower lessee; (iv) all
rental and other charges due and payable thereunder have been paid in full
(except to the extent such payment is not yet overdue); (v) no Borrower or
other Consolidated Party is in default under or has received any notice of
default with respect to such Approved Ground Lease; (vi) to the knowledge
of the Borrowers, no lessor under such a ground lease is in default thereunder;
(vii) a true and correct copy of such ground lease (together with any
amendments, modifications, restatements or supplements thereof) has been
delivered to the Administrative Agent; and (viii) there exist no adverse
claims as to the applicable Borrower’s title or right to possession of the
leasehold premises referenced therein.


 


(b)           Schedule 5.08(b) sets
forth a complete and accurate list of all Liens on the property or assets of
each Borrower as of the date hereof, showing as of the date hereof the
lienholder thereof, the principal amount of the obligations secured thereby and
the property or assets of such Borrower or such Subsidiary subject
thereto.  The property of each Borrower
and each of its Subsidiaries is subject to no Liens, other than Liens set forth
on Schedule 5.08(b), and as otherwise permitted by Section 7.01.


 


(c)           Schedule 5.08(c) sets
forth a complete and accurate list of all Investments held by any Borrower on
the date hereof, showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.


 


5.09        Environmental Compliance.


 


(a)           The Borrowers
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Borrowers have
reasonably concluded that, except as specifically disclosed in Schedule 5.09,
such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)           Except
as otherwise set forth in Schedule 5.09, none of the properties
currently or to the knowledge of the Borrowers, formerly owned or operated by
any Borrowers is listed or, to the knowledge of the Borrowers, proposed for
listing on the NPL or on the CERCLIS or any analogous state or local list or is
adjacent to any such property, there are no and, to the knowledge of the
Borrowers, never have been any underground or above-ground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been transported, treated, stored or disposed on
any property currently owned or operated by any Borrowers or, to the best of
the knowledge of the Borrowers, on any property formerly owned or operated by
any Borrowers; or to the knowledge of the Borrowers, there is no friable
asbestos or asbestos-containing material on any property currently owned or
operated by any Borrowers; and Hazardous Materials have not been
transported, released, discharged or disposed of on any property currently or
formerly owned or operated by any Borrowers except in compliance with all applicable Environmental Laws and as would
otherwise not reasonably be expected to have a Material Adverse Effect.


 


(c)           Except
as otherwise set forth on Schedule 5.09, no Borrower is undertaking,
and has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently or
formerly owned or operated by any Borrowers have
been disposed of in a manner not reasonably expected to result in material
liability to any Borrowers.


 


(d)           Except
as otherwise set forth on Schedule 5.09, each of the Borrowing Base Properties and all
operations at such Borrowing Base Properties are in compliance with all
applicable Environmental Laws in all material 


 


66

















 


respects, there is no
material violation of any Environmental Law with respect to such Borrowing Base
Properties or the businesses located thereon, and there are no conditions
relating to such Borrowing Base Properties or the businesses that could
reasonably be expected to give rise to material liability under any applicable
Environmental Law.


 


(e)           Except as
otherwise set forth on Schedule 5.09, none of the Borrowing Base
Properties contains, or has previously contained, any Hazardous Materials at,
on or under such Borrowing Base Properties in amounts or concentrations that
constitute or constituted a material violation of, or could reasonably be
expected to give rise to material liability under, Environmental Laws.


 


(f)            Except as
otherwise set forth on Schedule 5.09, no Borrower has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of its Borrowing Base Properties or the
businesses located thereon, nor does any Responsible Officer of any Borrower
have knowledge or reason to believe that any such notice will be received or is
being threatened.


 


(g)           No judicial
proceeding or governmental or administrative action is pending or, to the best
knowledge of the Responsible Officers of the Borrowers, threatened, under any
Environmental Law reasonably expected to give rise to a material liability
under Environmental Laws to which any Borrower is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Borrowers, the Borrowing Base Properties or, to the knowledge of the Borrowers,
the businesses located thereon reasonably expected to give rise to a material
liability under Environmental Laws.


 


5.10        Insurance.


 


The properties of the
Borrowers are, as of the date hereof, insured with financially sound and
reputable insurance companies not Affiliates of any Borrower, in such amounts,
with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in localities
where the Borrowers operate.  The
insurance coverage of the Borrowing Base Entities with respect to the Borrowing
Base Properties as of the date hereof is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 5.10.  All insurance related to the Borrowing Base
Properties names the Administrative Agent (for the benefit of the Secured
Parties) as additional insured (in the case of liability insurance) or loss
payee (in the case of hazard insurance).


 


5.11        Taxes.


 


Each of the Borrowers
have filed (or other Persons have filed on their behalf) all Federal, state and
other material tax returns and reports required to be filed, and have paid (or
other Persons have paid on their behalf) all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP.  There is no
proposed tax assessment against any Borrower that would, if made, have a
Material Adverse Effect.  No Borrower is
party to any tax sharing agreement pursuant to which they would have liability
for Taxes of any Person other than the Borrowers.


 


5.12        ERISA Compliance.


 


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


 


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


 


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


 


5.13        Subsidiaries; Equity Interests; Borrowers.


 


The corporate capital and
ownership structure of the Principal Borrower and its Subsidiaries (as of the
most recent update of such schedule in accordance with Section 6.02
hereof) is as described in Schedule 5.13(a).  Set forth on Schedule 5.13(b) is
a complete and accurate list (as of the most recent update of such schedule in
accordance with Section 6.02 hereof) with respect to each of the
direct and indirect Subsidiaries of the Principal Borrower of (i) jurisdiction
of organization, (ii) number of ownership interests (if expressed in units
or shares) of each class of Equity Interests outstanding, (iii) number and
percentage of outstanding ownership interests (if expressed in units or shares)
of each class owned (directly or indirectly) by the Principal Borrower and its
Subsidiaries, (iv) all outstanding options, warrants, rights of conversion
or purchase and all other similar rights with respect thereto and (v) an
identification of which such Subsidiaries are Borrowers hereunder and which
Borrowing Base Properties are owned by each such Borrower.  The outstanding Equity Interests of each such
Person is, to the extent applicable depending on the organizational nature of
such Person, validly issued, fully paid and non-assessable and is owned by the
Principal Borrower or a Subsidiary thereof (as applicable), directly or
indirectly, in the manner set forth on Schedule 5.13(b), free and
clear of all Liens (other than Permitted Liens or, in the case of the Equity
Interests of the Borrowers, statutory Liens or Liens arising under or
contemplated in connection with the Loan Documents).  Other than as set forth in Schedule 5.13(b),
no Borrower or any Subsidiary thereof has outstanding any securities
convertible into or exchangeable for its Equity Interests nor does any such
Person have outstanding any rights to subscribe for or to purchase or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to its Equity Interests. 
The copy of the charter of each Borrower and each amendment thereto
provided pursuant to Section 4.01(a)(v) is a true and correct copy of
each such document, each of which is valid and in full force and effect.


 


5.14        Margin Regulations; Investment
Company Act.


 


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


 


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


 


5.15        Disclosure.


 


The Borrowers have
disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of their
Subsidiaries is subject, and all other matters known to them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Borrower to the Administrative Agent
or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case as modified or supplemented by other information so
furnished), taken as a whole, contains any material misstatement 


 


68

















 


of fact or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrowers represent only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


5.16        Compliance with Laws.


 


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


 


5.17        Intellectual Property; Licenses, Etc.


 


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


 


5.18        Solvency.


 


Each Borrower is,
individually and together with its Subsidiaries on a consolidated basis,
Solvent.


 


5.19        Casualty, Etc.


 


None of the Borrowing
Base Properties have been affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act
of God or of the public enemy or other casualty (whether or not covered by
insurance) that has not previously been repaired or that, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


5.20        Labor Matters.


 


There are no collective
bargaining agreements or Multiemployer Plans covering the employees of any
Borrower or any of their Subsidiaries as of the Closing Date and neither the
Borrowers nor any of their Subsidiaries has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last year (or
date of organization if less).


 


5.21        Collateral Documents.


 


The provisions of the
Collateral Documents are effective to create in favor of the Administrative
Agent for the benefit of the Secured Parties a legal, valid and enforceable
first priority and perfected Lien (subject to Liens permitted by Section 7.01)
on all right, title and interest of the respective Borrowers in the Collateral
described therein.  Except for filings
completed prior to the Closing Date and as contemplated hereby and by the
Collateral Documents, no filing or other action will be necessary to perfect or
protect such Liens.


 


5.22        REIT Status.


 


The Principal Borrower is
qualified either as a REIT or as a QRS, and each of its Subsidiaries that is a
corporation is a QRS.  As of the Closing
Date, the Principal Borrower has no Subsidiaries that are taxable REIT
subsidiaries, as such term is used in the Code.


 


69














 


5.23        Borrowing Base Properties.


 


Schedule 1.01(a) (as adjusted from time to time in
accordance with the terms hereof) sets forth each of the Borrowing Base
Properties and the Borrowing Base Leases as of the date of the last adjustment
thereof pursuant to the terms of Section 1.10.  Each Real Property listed on Schedule 1.01(a) fully
qualifies as a Borrowing Base Property.


 


ARTICLE VI


 


AFFIRMATIVE
COVENANTS


 


Until the Obligations
have been Fully Satisfied, the Borrowers shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03, 6.06, 6.07, 6.10,
6.11, 6.12, 6.13, 6.16, 6.18, 6.19 and 6.20) cause each Subsidiary to:


 


6.01        Financial Statements.


 


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


 


(a)           as
soon as available, but in any event within 90 days after the end of each fiscal
year of  the Principal Borrower  (commencing with the
fiscal year ended December 31, 2009), a consolidated and consolidating balance sheet of the
Consolidated Parties as at the end of such fiscal year, and the related
consolidated and consolidating statements of income
or operations, changes in shareholders’ equity and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and
accompanied by a report and opinion of an independent certified public accountant
of nationally recognized standing acceptable to the Required Lenders, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of
such audit, and such consolidating statements to be
certified by the chief executive officer, chief financial officer, treasurer or
controller of the Principal Borrower to the effect that such statements are
fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Principal Borrower and its
Subsidiaries; and


 


(b)           as
soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Principal Borrower (commencing with the fiscal quarter ended June 30, 2009), a consolidated and
consolidating balance sheet of the
Consolidated Parties as at the end of such fiscal quarter, the related
consolidated and consolidating statements of income or operations for such
fiscal quarter and for the portion of the
Principal Borrower’s fiscal year then ended, and the related consolidated and
consolidating statements of changes in shareholders’ equity and cash flows for
the portion of the Borrower’s fiscal year then ended, in each case setting
forth in comparative form, as applicable, the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such
consolidated statements to be certified by the chief executive officer, chief
financial officer, treasurer or controller of the
Principal Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the
Principal Borrower and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Principal
Borrower to the effect that such statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements
of the Principal Borrower and its Subsidiaries.


 


As to any information
contained in materials furnished pursuant to Section 6.02(d), the
Borrowers shall not be separately required to furnish such information under Section 6.01(a) or
(b) above, but the foregoing shall not be in derogation of the
obligation of the Borrowers to furnish the information and materials described
in Sections 6.01(a) and (b) above at the times
specified therein.


 


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6.02        Certificates; Other Information.


 


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


 


(a)           concurrently with the
delivery of the financial statements referred to in Section 6.01(a),
(i) a certificate of its independent certified public accountants
certifying such financial statements, and (ii) a certificate of its chief
financial officer stating that after due inquiry no knowledge was obtained of
any Default under the financial covenants set forth herein or, if any such
Default shall exist and be continuing, stating the nature and status of such
event;


 


(b)           concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b), (i) a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer,
treasurer or controller of the Principal Borrower
(which shall include an update to Schedule 1.01(a)), (ii) a copy of
management’s discussion and analysis with respect to such financial statements
and (iii) operating statements for each of the Borrowing Base
Properties for the most-recently ended calendar quarter;


 


(c)           promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts
or books of any Borrower or any of their
Subsidiaries, or any audit of any of them;


 


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


 


(e)           promptly
after the furnishing thereof, copies of any statement or report furnished to
any holder of debt securities of any Borrower or of any of their
Subsidiaries pursuant to the terms of any indenture, loan or credit or similar
agreement and not otherwise required to be furnished to the Lenders pursuant to
Section 6.01 or any other clause of this Section 6.02;


 


(f)            with respect to each Borrowing Base Lease under which the lessee/tenant
is the federal government of the United States (or an agency or authority of
the federal government of the United States) and under which the named
lessor/landlord is a Person other than the Borrower that has executed and
delivered the Mortgage with respect to the Real Property subject to such
Borrowing Base Lease, use its best efforts to deliver to the Administrative
Agent as soon as practicable a Novation Agreement, duly executed and
enforceable, from the applicable lessee/tenant under such Borrowing Base Lease
evidencing that the transfer of the lessor’s/landlord’s interest in the
Borrowing Base Lease to the applicable Borrower is recognized by such
lessee/tenant;


 


(g)           promptly,
and in any event within five (5) Business Days after receipt thereof by
any Borrower or any Subsidiary thereof, copies
of each notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or
other operational results of any Borrower or any Subsidiary
thereof;


 


(h)           not
later than five (5) Business Days after receipt thereof by any Borrower, copies of all notices, requests and other documents
(including amendments, waivers and other modifications) so received under or
pursuant to any instrument, indenture, loan or credit or similar agreement  regarding
or related to any breach or default by any party thereto or any other event
that could materially impair the value of the interests or the rights of any
Borrower or otherwise have a Material Adverse Effect  and, from time to time upon request by the
Administrative Agent, such information and reports regarding such instruments,
indentures and loan and credit and similar agreements as the Administrative
Agent may request;


 


(i)            promptly
after the assertion or occurrence thereof, notice of any action or proceeding
against or of any noncompliance by any Borrower with respect to a Borrowing
Base Property with any Environmental Law or Environmental Permit that could (i) reasonably
be expected to have a Material Adverse Effect or (ii) cause any 


 


71

















 


property described in the Mortgages
to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law;


 


(j)            concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b), an update to Schedules 5.06, 5.09 or 5.13(a) or
(b) to the extent the information provided by any such schedules
has changed since the most recent update thereto; provided, that the
Borrowers shall, promptly upon the Administrative Agent’s written request
therefor, provide any information or materials requested by the Administrative
Agent to confirm or evidence the matters reflected in such updated schedules;


 


(k)           promptly,
and in any event within ten (10) Business Days after receipt thereof by
any Borrower or any Subsidiary thereof, copies of any new Lease or Lease
amendment, restatement, supplement or other modification with respect to any of
the then-existing Borrowing Base Properties (and, to the extent requested by
the Administrative Agent, an updated Compliance Certificate showing the effect,
on a Pro Forma Basis, of such amendment, restatement, supplement or other
modification); and


 


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


 


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


 


The Borrowers hereby
acknowledge that (a) the Administrative Agent and/or BAS will make available
to the Lenders and the L/C Issuer materials and/or information provided by or
on behalf of the Borrowers hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrowers or their Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’
securities.  The Borrowers hereby agree
that it will use commercially reasonable efforts to identify that portion of
the Borrower Materials that may be distributed to the Public Lenders and that (w) all
such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
the Borrowers shall be deemed to have authorized the Administrative Agent, BAS,
the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information (although it may be sensitive
and proprietary) with respect to the Borrowers or their securities for purposes
of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and BAS shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform that is not designated “Public Side Information.”


 


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6.03        Notices.


 


Promptly notify the
Administrative Agent and each Lender:


 


(a)           of
the occurrence of any Default which is then-continuing;


 


(b)           of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect;


 


(c)           of
the occurrence of any ERISA Event;


 


(d)           of
any material change in accounting policies or financial reporting practices by
any Borrower or any Subsidiary thereof,
including any determination by the Principal Borrower referred to in Section 2.10(b);


 


(e)           of any voluntary
removal or other event or circumstance that results in a Real Property
previously-qualifying as a Borrowing Base Property ceasing to qualify as such (provided,
that such notification shall be accompanied by an updated Compliance
Certificate with calculations showing the effect of such removal on the
financial covenants contained herein and on any Borrowing Base-related
restrictions on the Outstanding Amounts hereunder); and


 


(f)            upon the written
request of the Administrative Agent following the occurrence of any event or
the discovery of any condition which the Administrative Agent or the Required
Lenders believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 5.09, insofar
as they relate to the Borrowing Base Properties, to be untrue in any material
respect, the Borrowers will furnish or cause to be furnished to the
Administrative Agent, at the Borrowers’ expense, a report of an environmental
assessment of reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant acceptable to the
Administrative Agent as to the nature and extent of the presence of any
Hazardous Materials on any Borrowing Base Properties and as to the compliance
by any Borrower with Environmental Laws at such Borrowing Base Properties.  If the Borrowers fail to deliver such an
environmental report within sixty (60) days after receipt of such written
request then the Administrative Agent may arrange for same, and the Borrowers
hereby grant to the Administrative Agent and its representatives access to the
Borrowing Base Properties to reasonably undertake such an assessment
(including, where appropriate, invasive soil or groundwater sampling) provided
such access and assessment shall not unreasonably interfere with any tenant or
otherwise violate the terms of any Lease. 
The reasonable cost of any assessment arranged for by the Administrative
Agent pursuant to this provision will be payable by the Borrowers on demand and
added to the obligations secured by the Collateral Documents.


 


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


 


6.04        Payment of Obligations.


 


Pay and discharge as the
same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by such Borrower or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien (other than a Permitted Lien) upon its property, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by such Borrower
or such Subsidiary; and (c) all Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness, except to the extent the failure to pay
or discharge the same could not reasonably be expected to have a Material
Adverse Effect.


 


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6.05        Preservation of Existence, Etc.


 


(a)           Prior to a Public
Offering by the Principal Borrower, each Borrower will maintain its legal
structure as a single purpose, “bankruptcy remote” entity pursuant to its Organizational
Documents in effect on the date of this Agreement;


 


(b)           preserve, renew
and maintain in full force and effect its legal existence and good standing
under the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; provided, however,
that the Borrowers and their Subsidiaries may consummate any merger,
consolidation, liquidation or dissolution permitted under Section 7.04;


 


(b)           take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and


 


(c)           preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.


 


6.06        Maintenance of Properties.


 


(a)           Maintain,
preserve and protect all of its other material properties and equipment necessary
in the operation of its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof, except, in each case, where the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and


 


(b)           use
the standard of care typical in the industry in the operation and maintenance
of its Real Properties and other property.


 


6.07        Maintenance of Insurance.


 


Maintain with financially
sound and reputable insurance companies not (except to the extent otherwise
approved in writing by the Administrative Agent) Affiliates of any Borrower,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.  All insurance related to the Borrowing Base
Properties shall name the Administrative Agent (for the benefit of the Secured
Parties) as additional insured (in the case of liability insurance) or loss
payee (in the case of hazard insurance).


 


6.08        Compliance with Laws.


 


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


 


6.09        Books and Records.


 


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


 


(b)           maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Borrowers or
such Subsidiary, as the case may be.


 


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6.10        Inspection Rights.


 


(a)           Subject
to the rights of tenants, permit the representatives and independent
contractors of the Administrative Agent on behalf of the Lenders to visit and
inspect any of the Borrowing Base Properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the expense of
the Borrowers and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrowers; provided, that the Borrowing Base Properties and the applicable
records may be inspected pursuant to this provision no more often than once
during any calendar year except to the extent a Default is then-continuing.


 


(b)           Subject
to the rights of tenants, permit each of the Lenders and the representatives
and independent contractors of each such Lender to visit and inspect any of the
Borrowing Base Properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of each such Lender and as often as may
be reasonably desired; provided, that any Lender seeking to perform any such
visit or inspection shall provide notice of such intention directly to the
Administrative Agent (rather than to the Borrowers).  The Administrative Agent shall coordinate the
performance of all such visits or inspections by the Lenders and shall provide
the Borrowers reasonable advance notice of such visits and inspections and
shall schedule such visits and inspection at reasonable times during normal
business hours.


 


Notwithstanding anything
contained in this Section 7.10 to the contrary, during the
continuance of any Event of Default, the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may,
subject to the rights of tenants, do any of the foregoing at the expense of the
Borrowers at any time during normal business hours and without advance notice.


 


6.11        Use of Proceeds.


 


Use the proceeds of the
Credit Extensions for general corporate purposes and a one time distribution to
the Equity Investor (which may be up to the full amount of the Credit
Extensions on the Closing Date) not in contravention of any Law or of any Loan
Document.


 


6.12        Joinder of Additional Borrowers.


 


(a)           Cause each
Subsidiary that is not already a Borrower and that owns any Real Property which
the Borrowers wish to treat as a Borrowing Base Property to deliver to the
Administrative Agent prior to such Real Property being included in the
calculation of the Borrowing Base and treated as a Borrowing Base Property for
purposes of the financial covenants contained herein: (i) a Joinder Agreement
executed by such Subsidiary, (ii) the items that would have been delivered
under Sections 4.01(a)(v), (vi), (vii), (viii) and
(x) if such Subsidiary had been a Borrower on the Closing Date and
the applicable Real Property were a Borrowing Base Property as of such date and
(iii) all documentation and other information that the Administrative
Agent or any Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and
regulations (provided, that the documentation and information required pursuant
to this subclause (iii) shall be provided at least five (5) days
prior to the date on which any Real Property owned by the applicable Subsidiary
is treated as a Borrowing Base Property);


 


(b)           cause each
Borrowing Base Entity to, at all times, be (i) a wholly-owned Domestic
Subsidiary (whether direct or indirect) of the Principal Borrower and (ii) a
Borrower hereunder;


 


provided, upon the addition of any Borrower
pursuant to the terms and conditions set forth above, Schedule 5.13(b) attached
hereto shall be deemed amended to reflect the addition of such Borrower.


 


6.13        Compliance with Environmental Laws.


 


Comply, and cause all
lessees and other Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental Laws and Environmental
Permits,  except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; obtain and renew all Environmental Permits necessary for its operations
and properties, except where the failure to do so could not reasonably be 


 


75

















 


expected to have a
Material Adverse Effect; and conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, to
the extent required by and in accordance with the requirements of all
Environmental Laws, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; provided, however,
that neither the Borrowers nor any of their Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.


 


6.14        Further Assurances.


 


Promptly upon request by
the Administrative Agent, or any Lender through the Administrative Agent, (a) correct
any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i) carry
out more effectively the purposes of the Loan Documents, (ii) to the
fullest extent permitted by applicable law, subject any Borrower’s or any of
their Subsidiaries’ properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (iii) perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (iv) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Borrower
or any of their Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.


 


6.15        Compliance with Terms of Leaseholds;
Approved Ground Lease Matters.


 


(a)           Make all payments
and otherwise perform in all material respects all obligations in respect of
all Leases (including the Borrowing Base Leases) related to the Borrowing Base
Properties and all other real property to which any Borrower is a party and,
with respect to the Borrowing Base Leases and the Approved Ground Leases, keep
such Leases in full force and effect and not allow such Leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to cure
any such default, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to have a
Material Adverse Effect.


 


(b)           With respect to
any Approved Ground Lease or material easement agreements in favor of such
Borrower and related to any Borrowing Base Property (as applicable):


 


(i)            pay
when due the rent and other amounts due and payable thereunder (subject to
applicable cure or grace periods);


 


(ii)           timely
perform and observe all of the material terms, covenants and conditions
required to be performed and observed by it as tenant thereunder (subject to
applicable cure or grace periods);


 


(iii)          do
all things necessary to preserve and keep unimpaired such ground lease or
easement agreement and its rights thereunder;


 


(iv)          not
waive, excuse or discharge any of the material obligations of the lessor or
other obligor thereunder;


 


(v)           diligently
and continuously enforce the material obligations of the lessor or other
obligor thereunder;


 


(vi)          not
do, permit or suffer (i) any act, event or omission which would be likely
to result in a default or permit the applicable lessor or other obligor to
terminate or exercise any other remedy with 


 


76

















 


respect to the applicable
ground lease or easement or (ii) any act, event or omission which, with
the giving of notice or the passage of time, or both, would constitute a
default or permit the lessor or such other obligor to exercise any other remedy
under the applicable agreement;


 


(vii)         cancel,
terminate, surrender, modify or amend any of the provisions of any such ground
lease or easement or agree to any termination, amendment, modification or
surrender thereof without the prior written consent of the Administrative
Agent;


 


(viii)        deliver
to the Administrative Agent all default and other material notices received by
it or sent by it under the applicable ground lease or easement agreement;


 


(ix)           at
Administrative Agent’s request, provide to Administrative Agent any information
or materials relating to such ground lease or easement agreement and evidencing
such Borrower’s due observance and performance of its obligations thereunder;


 


(x)            not
permit or consent to the subordination of such ground lease or easement
agreement to any mortgage or other leasehold interest of the premises related
thereto;


 


(xi)           execute
and deliver (to the extent permitted to do so under such ground lease or
easement agreement), upon the request of the Administrative Agent, any
documents, instruments or agreements as may be required to permit the
Administrative Agent to cure any default under such ground lease or easement
agreement;


 


(xii)          provide
to Administrative Agent written notice of its intention to exercise any option
or renewal or extension rights with respect to such ground lease or easement at
least thirty (30) days prior to the expiration of the time to exercise such
right or option and, upon the direction of the Administrative Agent, duly
exercise any renewal or extension option with respect to any such ground lease
or easement (provided, that Borrower and each Borrower hereby appoints the Administrative Agent its
attorney-in-fact, coupled with an interest, to execute and deliver, for and in
the name of such Person, all instruments, documents or agreements necessary to
extend or renew any such ground lease or easement;


 


(xiii)         not
treat, in connection with the bankruptcy or other insolvency proceedings of any
ground lessor or other obligor, any ground lease or easement agreement as
terminated, cancelled or surrendered pursuant to the Bankruptcy Code without
the Administrative Agent’s prior written consent;


 


(xiv)        in
connection with the bankruptcy or other insolvency proceedings of any ground
lessor or other obligor, ratify the legality, binding effect and enforceability
of the applicable ground lease or easement agreement within the applicable time
period therefore in such proceedings, notwithstanding any rejection by such
ground lessor or obligor or trustee, custodian or receiver related thereto;


 


(xv)         provide
to the Administrative Agent not less than thirty (30) days prior written notice
of the date on which the applicable Borrower shall apply to any court or other
governmental authority for authority or permission to reject the applicable
ground lease or easement agreement in the event that there shall be filed by or
against any Borrower any petition, action or proceeding under the Bankruptcy
Code or any similar federal or state law; provided, that the Administrative
Agent shall have the right, but not the obligation, to serve upon the
applicable Borrower within such thirty (30) day period a notice stating that (A) the
Administrative Agent demands that such Borrower assume and the assign the
relevant ground lease or easement agreement to the Administrative Agent subject
to an in accordance with the Bankruptcy Code and (B) the Administrative
Agent covenants to cure or provide reasonably adequate assurance thereof with
respect to all defaults susceptible of being cured by the Administrative Agent
and of future performance under the applicable ground lease or easement
agreement; provided, further, that if the Administrative Agent serves such
notice upon the applicable Borrower, such Borrower shall not seek to reject the
applicable agreement and shall promptly comply with such demand;


 


(xvi)        permit
the Administrative Agent (at its option), during the continuance of any Event
of Default, to (i) perform and comply with all obligations under the
applicable ground lease or easement 


 


77

















 


agreement; (ii) do
and take such action as the Administrative Agent deems necessary or desirable
to prevent or cure any default by such Borrower under such ground lease or
easement agreement and (iii) enter in and upon the applicable premises
related to such ground lease or easement agreement to the extent and as often
as the Administrative Agent deems necessary or desirable in order to prevent or
cure any default under the applicable ground lease or easement agreement;


 


(xvii)       in
the event of any arbitration, court or other adjudicative proceedings under or
with respect to any such ground lease or easement agreement, permit the
Administrative Agent (at its option) to exercise all right, title and interest
of the applicable Borrower in connection with such proceedings; provided, that (i) Borrower
and each other Borrower hereby irrevocably appoint the Administrative Agent as
their attorney-in-fact (which appointment shall be deemed coupled with an
interest) to exercise such right, interest and title and (ii) the
Borrowers shall bear all costs, fees and expenses related to such proceedings;
provided, further, that each Borrower hereby further agrees that the
Administrative Agent shall have the right, but not the obligation, to proceed
in respect of any claim, suit, action or proceeding relating to the rejection
of any of the ground leases or easement agreements referenced above by the
relevant ground lessor or obligor as a result of bankruptcy or similar
proceedings (including, without limitation, the right to file and prosecute all
proofs of claims, complaints, notices and other documents in any such
bankruptcy case or similar proceeding); and


 


(xviii)      deliver
to the Administrative Agent (or, subject to the requirements of the subject
ground lease, cause the applicable lessor or other obligor to deliver to the
Administrative Agent) an estoppel certificate in relation to such ground lease
or easement agreement in form and substance acceptable to the Administrative
Agent, in its discretion, and, in any case, setting forth (A) the name of
lessee and lessor under the ground lease (if applicable); (B) that such
ground lease or easement agreement is in full force and effect and has not been
modified except to the extent Administrative Agent has received notice of such
modification; (C) that no rental and other payments due thereunder are
delinquent as of the date of such estoppel; and (D) whether such Person
knows of any actual or alleged defaults or events of default under the
applicable ground lease or easement agreement;


 


provided, that each
Borrower hereby agrees to execute and deliver to Administrative Agent, within
ten (10) days of any request therefor, such documents, instruments,
agreements, assignments or other conveyances reasonably requested by the
Administrative Agent in connection with or in furtherance of any of the
provisions set forth above or the rights granted to the Administrative Agent in
connection therewith.


 


6.16        Lien Searches.


 


Promptly following
receipt of the acknowledgment copy of any financing statements filed under the
Uniform Commercial Code in any jurisdiction by or on behalf of the Secured
Parties, deliver to the Administrative Agent completed requests for information
listing such financing statement and all other effective financing statements
filed in such jurisdiction that name any Borrower
as debtor, together with copies of such other financing statements.


 


6.17        Material Contracts.


 


Perform and observe all
the material terms and provisions of each Material Contract to be performed or
observed by it, except to the extent the failure to so perform or observe would
not have a Material Adverse Effect.


 


6.18        Collateral Matters.


 


(a)           Cause (i) all
Real Property interests related to the Borrowing Base Properties, (ii) all
personal property (including, without limitation, any and all construction
drawings, construction plans and architectural renderings relating thereto)
owned by the Borrowers and relating to any Borrowing Base Properties (other
than vehicles subject to certificates of title) and (iii) all of the
Pledged Interests to, in each case, be subject at all times to first priority,
perfected and, in the case of the Real Property interest in each Borrowing Base
Property (whether leased or owned), title insured Liens in favor of the
Administrative Agent to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such property
acquired subsequent to the 


 


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Closing Date, such other
additional security documents as the Administrative Agent shall request,
subject in any case only to Permitted Liens;


 


(b)           with respect to any Collateral described in the
foregoing clause (a), deliver such other documentation as the Administrative
Agent may request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, surveys, environmental reports, landlord’s waivers, certified
resolutions and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent’s Liens
thereunder) and other items of the types required to be delivered pursuant to Section 4.01(a)(viii) or
(ix), all in form, content and scope satisfactory to the Administrative
Agent and


 


(c)           indemnify and/or reimburse (as applicable) the
Administrative Agent for any and all costs, expenses, losses, claims, fees or
other amounts paid or incurred by the Administrative Agent to the extent paid
or incurred in connection with the filing or recording of any documents,
agreement or instruments related to the Collateral, the protection of any of
the Collateral, its rights and interests therein or any Borrower’s underlying
rights and interests therein or the enforcement of any of its other rights with
respect to the Collateral; provided, that the reimbursement and indemnity
obligations set forth in this clause (c) shall be in addition to and in
furtherance of all other reimbursement or indemnity obligations of the
Borrowers referenced herein or in any other Loan Document.


 


6.19        Insurance.


 


(a)           Obtain and maintain, with respect to each Borrowing
Base Property, at their sole expense the following:


 


(i)            property
insurance with respect to all insurable property located at or on or
constituting a part of such Borrowing Base Property, against loss or damage by
fire, lightning, windstorm, explosion, hail, tornado and such additional
hazards as are presently included in “Special Form (also known as “all-risk”)
coverage and against any and all acts of terrorism and such other insurable
hazards as the Administrative Agent may require, in an amount not less than
100% of the full replacement cost, including the cost of debris removal,
without deduction for depreciation and sufficient to prevent the applicable
Borrower and its Subsidiaries and the Administrative Agent from becoming a
coinsurer, such insurance to be in “builder’s risk” completed value
(non-reporting) form during and with respect to any construction on or with
respect to such Borrowing Base Property;


 


(ii)           if and to the extent any portion of any of the
improvements are, under the Flood Disaster Protection Act of 1973 (“FDPA”), as
it may be amended from time to time, in a Special Flood hazard Area, within a
Flood Zone designated A or V in a participating community, a flood insurance
policy in an amount required by the Administrative Agent, but in no event less
than the amount sufficient to meet the requirements of applicable law and the
FDPA, as such requirements may from time to time be in effect;


 


(iii)          general liability insurance, on an “occurrence” basis,
against claims for “personal injury” liability, including bodily injury, death
or property damage liability, for the benefit of the applicable Borrower as
named insured and the Administrative Agent as additional insured;


 


(iv)          statutory workers’ compensation insurance with respect to
any work on or about such Borrowing Base Property (including employer’s
liability insurance, if required by the Administrative Agent), covering all
employees of the applicable Borrower and/or its applicable Subsidiary(ies) and
any contractor;


 


(v)           if
there is a general contractor, commercial general liability insurance,
including products and completed operations coverage, and in other respects
similar to that described in clause (iv) above, for the benefit of the
general contractor as named insured and the Borrower or its applicable
Subsidiary(ies) and the Administrative Agent as additional insureds, in
addition to statutory workers’ compensation insurance with respect to any work
on or about the Premises (including employer’s liability insurance, if


 


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required
by the Administrative Agent), covering all employees of the general contractor
and any contractor; and


 


(vi)                              such other insurance (and related
endorsements) as may from time to time be required by the Administrative Agent
(including but not limited to soft cost coverage, automobile liability
insurance, business interruption insurance or delayed rental insurance, boiler
and machinery insurance, earthquake insurance (if then customarily carried by
owners of premises similarly situated), wind insurance, sinkhole coverage,
and/or permit to occupy endorsement) and against other insurable hazards or
casualties which at the time are commonly insured against in the case of
premises similarly situated, due regard being given to the height, type,
construction, location, use and occupancy of buildings and improvements.


 


(b)                                 All insurance policies obtained by any
Borrower with respect to or in connection with any Borrowing Base Property
shall be issued and maintained by insurers, in amounts, with deductibles, limits
and retentions, and in forms satisfactory to the Administrative Agent, and
shall require not less than thirty (30) days’ prior written notice to the
Administrative Agent of any cancellation or any change of coverage.


 


(c)                                  All insurance companies providing coverage
pursuant to clause (a) of this Section 6.19 or any other
general coverage required pursuant to any Loan Documents must be licensed to do
business in the state in which the applicable Borrowing Base Property is
located and must have an A.M. Best Company financial and performance
ratings of A-:IX or better.


 


(d)                                 All insurance policies maintained, or caused
to be maintained, by any Borrower or its applicable Subsidiary(ies) with
respect to any Borrowing Base Property, except for general liability insurance,
shall provide that each such policy shall be primary without right of
contribution from any other insurance that may be carried by such Borrower or
its applicable Subsidiary(ies) or the Administrative Agent and that all of the
provisions thereof, except the limits of liability, shall operate in the same
manner as if there were a separate policy covering each insured.


 


(e)                                  If any insurer which has issued a policy of
title, hazard, liability or other insurance required pursuant to this Section 6.19
or any other provision of any Loan Document becomes insolvent or the subject of
any petition, case, proceeding or other action pursuant to any debtor relief
law, or if in Administrative Agent’s opinion the financial responsibility of
such insurer is or becomes inadequate, such Borrower or its applicable
Subsidiary(ies) shall, in each instance promptly upon its discovery thereof or
upon the request of the Administrative Agent therefor, and at such Borrower’s
or its applicable Subsidiary(ies)’s expense, promptly obtain and deliver to the
Administrative Agent a like policy (or, if and to the extent permitted by the
Administrative Agent, acceptable evidence of insurance) issued by another
insurer, which insurer and policy meet the requirements of this Section 6.19
or any other provision of any Loan Document, as the case may be.


 


(f)                                    Without limiting the discretion of the
Administrative Agent with respect to required endorsements to insurance
policies, all such policies for loss of or damage to any Borrowing Base
Property shall contain a standard mortgagee clause (without contribution)
naming the Administrative Agent as mortgagee with loss proceeds payable to the
Administrative Agent notwithstanding (i) any act, failure to act or
negligence of or violation of any warranty, declaration or condition contained
in any such policy by any named or additional insured; (ii) the occupation
or use of such Borrowing Base Property for purposes more hazardous than
permitted by the terms of any such policy; (iii) any foreclosure or other
action by the Administrative Agent under the Loan Documents; or (iv) any
change in title to or ownership of such Borrowing Base Property or any portion
thereof, such proceeds to be held for application as provided in the Loan
Documents.


 


(g)                                 The originals of each initial insurance
policy (or to the extent permitted by the Administrative Agent, a copy of the
original policy and such evidence of insurance as may be acceptable to the
Administrative Agent) shall be delivered to the Administrative Agent at the
time of execution of the applicable Mortgage, with all premiums fully paid
current, and each renewal or substitute policy (or evidence of insurance) shall
be delivered to the Administrative Agent, with all premiums fully paid current,
at least ten (10) business days before the termination of the policy it
renews or replaces.  The applicable
Borrower or its applicable Subsidiary(ies) shall pay all premiums on policies
required hereunder as they become due and payable and promptly deliver to the
Administrative Agent evidence satisfactory to the Administrative Agent of the
timely payment thereof.


 


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(h)                                 If any loss occurs at any time when the
applicable Borrower or its applicable Subsidiary(ies) has failed to perform the
covenants and agreements set forth in this Section 6.19 with
respect to any insurance payable because of loss sustained to any part of the
Premises whether or not such insurance is required by the Administrative Agent,
then the Administrative Agent shall nevertheless be entitled to the benefit of
all insurance covering the loss and held by or for the applicable Borrower or
its applicable Subsidiary(ies), to the same extent as if it had been made
payable to the Administrative Agent.


 


(i)                                     Upon any foreclosure of any Mortgage or
transfer of title to all or any portion of any Borrower Base Property in
extinguishment of the whole or any part of the Obligations, all of the
applicable Borrower’s or its applicable Subsidiary(ies)’s right, title and
interest in and to the insurance policies referred to in this Section 6.19
with respect to such Borrowing Base Property (including unearned premiums) and
all proceeds payable thereunder shall thereupon vest in the purchaser at
foreclosure or other such transferee, to the extent permissible under such
policies.


 


(j)                                     During the continuance of any Event of
Default, the Administrative Agent shall have the right (but not the obligation)
to make proof of loss for, settle and adjust any claim under, and receive the
proceeds of, all insurance for loss of or damage to any Borrowing Base
Property, regardless of whether or not such insurance policies are required by
the Administrative Agent, and the reasonable expenses incurred by the
Administrative Agent in the adjustment and collection of insurance proceeds
shall be a part of the Obligations and shall be due and payable to the
Administrative Agent on demand.  The
Administrative Agent shall not be, under any circumstances, liable or
responsible for failure to collect or exercise diligence in the collection of
any of such proceeds or for the obtaining, maintaining or adequacy of any
insurance or for failure to see to the proper application of any amount paid
over to any Borrower or its applicable Subsidiary(ies).  Any such proceeds received by the
Administrative Agent shall, after deduction therefrom of all reasonable
expenses actually incurred by the Administrative Agent, including attorneys’
fees, at the Administrative Agent’s option be (i) released to the applicable
Borrower or its applicable Subsidiary(ies), or (ii) applied (upon
compliance with such terms and conditions as may be required by the
Administrative Agent ) to repair or restoration, either partly or entirely, of
the Borrowing Base Property so damaged, or (iii) applied to the payment of
the Obligations in such order and manner as the Administrative Agent, in its
sole discretion, may elect, whether or not due (provided, that to the extent
any such proceeds are applied to any portion of the outstanding principal or
interest on any of the Loans, such proceeds shall be applied to all Outstanding
Amounts on any Loans pro rata based on the Total Outstandings).  In any event, the unpaid portion of the
Obligations shall remain in full force and effect and the payment thereof shall
not be excused.


 


(k)                                  Each
Borrower and its applicable Subsidiary(ies) shall at all times comply in all
material respects with the requirements of the insurance policies required
hereunder and of the issuers of such policies and of any board of fire
underwriters or similar body as applicable to or affecting any Borrowing Base
Property.


 


6.20                        Updated
Appraisals.


 


Acknowledge and agree
that the Administrative Agent shall have the right, in its discretion, to
obtain, at the expense of the Borrowers, new or updated “as-is” appraisals with
respect to each of the Borrowing Base Properties once during the term hereof
(in addition to the re-appraisals that may be required in connection with the
exercise of the Extension Option); provided, that such right shall not
be exercised during the six month period prior to the Initial Maturity Date
except to the extent a Default exists during such period and the Administrative
Agent commences to exercise such right during the continuance of such Default.  In addition, to the extent the Administrative
Agent initially incurs any costs or expenses related to any new appraisal
provided for in this Section 6.20, the Borrower and/or other
Borrowers shall reimburse the Administrative Agent upon demand in the amount of
such costs or expenses.  Each appraisal
obtained pursuant to this Section 6.20 shall be a FIRREA-compliant
MAI appraisal otherwise in form and substance and from an appraiser acceptable
to the Administrative Agent.  As such
appraisals are obtained and approved by the Administrative Agent, such
appraisals shall, immediately upon such approval, be used in the determination
of the BBP Value of the applicable Borrowing Base Property.


 


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ARTICLE
VII


 


NEGATIVE
COVENANTS


 


Until the Obligations
have been Fully Satisfied, the Borrowers shall not, nor shall they permit any
Subsidiary to, directly or indirectly:


 


7.01                        Liens.


 


(a)                                  Create,
incur, assume or suffer to exist any Lien upon any Borrowing Base Property whether
now owned or hereafter acquired (except to the extent released as a Borrowing
Base Property pursuant to and in accordance with the terms of Section 1.10
hereof) other than the following:


 


(i)                                     Liens
pursuant to any Loan Document;


 


(ii)                                  Liens existing on the
date hereof and listed on Schedule 5.08(b) or Liens existing
on the date any Borrowing Base Property is approved as a Borrowing Base
Property and which are referenced in the applicable Mortgage Policy for such
Borrowing Base Property and any renewals, refinancing or extensions thereof, provided
that (A) the amount secured or benefited thereby is not, at any time,
increased (except to the extent of (1) any existing unfunded commitments
related thereto or (2) any reasonable premium or other reasonable amount
paid, together with fees and expenses reasonably incurred in connection with
such refinancing) and (B) any Liens under this Section 7.01(a)(ii) which
represent due and unpaid obligations of the Borrowers will not, in the
aggregate, exceed five percent (5%) of Total Asset Value;


 


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


 


(iv)                              statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen and
suppliers and other Liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of business, provided
that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or
are being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established or if such
Liens secure the obligations of tenants, licenses or other occupants of any
Borrowing Base Property, then the same are not material in amount;


 


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


 


(vi)                              the Borrowing Base Leases
and such other Leases granted by the Borrowers in the ordinary course of
business (to the extent not otherwise prohibited by the terms hereof); and


 


(vii)                           the interest of the lessor
under an Approved Ground Lease and/or interests of licensors or licensees
related to the business(es) operated pursuant to the applicable Borrowing Base
Leases or other Leases permitted pursuant to the terms hereof.


 


(b)                                 Create,
incur, assume or suffer to exist any Lien upon any of the Equity Interests of
any Borrowing Base Entity, other than the following:


 


(i)                                     Liens pursuant to
any Loan Document;


 


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


 


(iii)                               Liens securing judgments for the payment of money
not constituting an Event of Default under Section 8.01(h).


 


7.02                        Indebtedness.


 


(a)                                  Create,
incur, assume or suffer to exist any Indebtedness of any Borrowing Base Entity,
except:


 


(i)                                     Indebtedness under
the Loan Documents;


 


(ii)                                  Indebtedness in the form of trade payables
incurred in the ordinary course of business;


 


(iii)                               Investments permitted by
Section 7.03 hereof that constitute Indebtedness; and


 


(iv)                              intercompany Indebtedness
owed to a Borrower or a wholly-owned
Subsidiary of a Borrower, which Indebtedness shall (i) be on terms
(including subordination terms) acceptable to the Administrative Agent and (ii) be
otherwise permitted under the provisions of Section 7.03; and


 


(b)                                 create,
incur, assume or suffer to exist any other Indebtedness of the Consolidated
Parties, except to the extent that such Indebtedness of the Consolidated
Parties (other than the Borrowing Base Entities) does not result in a violation
of any of the financial covenants set forth in Section 7.11 hereof
or any of the other conditions or restrictions set forth herein.


 


7.03                        Investments.


 


Make or hold any Investments, except:


 


(a)                                  Investments held by the Borrowers and their
Subsidiaries in the form of Cash Equivalents;


 


(b)                                 Investments consisting of advances or loans to
directors, officers, employees, agents, customers or suppliers in an aggregate
principal amount (including Investments of such type set forth in Schedule 5.08(c))
not to exceed $100,000 at any time outstanding; provided, that all such
advances must be in material compliance with applicable Laws, including, but
not limited to, the Sarbanes-Oxley Act of 2002, as amended;


 


(c)                                  Investments in any Person which is a Borrower prior
to giving effect to such Investment and Investments (whether constituting
acquisitions or otherwise) in wholly-owned Subsidiaries of a Borrower (or
Persons that will, immediately upon the consummation of such Investment, be
wholly-owned Subsidiaries of a Borrower) or in the assets of such Persons, to
the extent such Investments are made in Persons or Property relating to the
types of businesses which are not prohibited by Section 7.07
hereof;


 


(d)                                 Investments consisting of extensions of credit in
the nature of accounts receivable or notes receivable arising from the grant of
trade credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(e)                                  Guarantees permitted by Section 7.02;


 


(f)                                    Investments existing on the date hereof and set
forth on Schedule 5.08(c);


 


(g)                                 Investments
in


 


(i)                                     undeveloped/speculative
land (valued at cost for purposes of this clause (g)) with an aggregate value
not greater than ten percent (10.0%) of Total Asset Value;


 


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(ii)                                  Investments in Real
Properties with respect to which Development Activities are being undertaken by
the applicable owner thereof (valued at cost; provided, that all costs
and expenses associated with all existing Development Activities (budget to
completion) shall be included in determining the aggregate Investment of the
Consolidated Parties with respect to such activities) with an aggregate value
not greater than ten percent (10.0%) of Total Asset Value;


 


(iii)                               Real Properties that, as
of the date of acquisition, are not subject to a Borrowing Base Lease (valued
at book value); and


 


(iv)                              in non-wholly owned
general and limited partnerships, joint ventures and other Persons which are
not corporations (valued at book value);


 


provided,
however, that the collective aggregate value of the Investments owned
pursuant to items (i) through (iv) above (which such valuation shall
include any Investments set forth on Schedule 5.08(c) to the extent
such Investments are still owned by a Borrower or Subsidiary) shall not at any
time exceed twenty-five percent (25.0%) of Total Asset Value;


 


(h)                                 Deposits
made in the ordinary course of business;


 


(i)                                     Investments
constituting the acquisition of Real Property which are intended to be and
subsequently qualified as Borrowing Base Properties within forty-five (45) days
of the date of the acquisition thereof (but until qualified as Borrowing Base
Properties, such Real Properties shall otherwise, if applicable, be counted
toward the bucket set forth in clause (g)(iii) above);


 


(j)                                     any
Investments received in compromise of obligations of trade creditors or
customers that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer; and


 


(k)                                  any
other Investments in an aggregate amount not to, at any time, exceed
$25,000,000, so long as immediately prior to and immediately after making any
such Investment, no Default exists or would reasonably be expected to exist,
including a Default resulting from a failure to comply with the covenant in Section 7.07.


 


7.04                        Fundamental
Changes.


 


Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:


 


(a)                                  (i) any Subsidiary that is not a Borrower may
merge with any Borrower or other Person, provided that when any Borrower
is merging with a Subsidiary that is not a Borrower, the Borrower shall be the
continuing or surviving Person, or (ii) any Borrower may merge with any
other Borrower, provided that when any Borrower is merging with the
Principal Borrower, the Principal Borrower shall be the continuing or surviving
Person;


 


(b)                                 any Borrower may Dispose of all or substantially all
of its assets (upon voluntary liquidation or otherwise) to another Borrower or
as provided in Section 7.05;


 


(c)                                  any Subsidiary that is not a Borrower (or required
to be a Borrower pursuant to the terms hereof) may dispose of all or
substantially all its assets and dissolve or liquidate; and


 


(d)                                 in connection with any acquisition permitted under Section 7.03,
any Subsidiary or any Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it; provided
that (i) the Person continuing or surviving a merger with a Subsidiary not
then a Borrower shall be a wholly owned Subsidiary of a Borrower and (ii) in
the case of any such merger to which any Borrower is a party, such Borrower is
the continuing or surviving Person; and


 


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(e)                                  so long as no Default has occurred and is continuing
or would result therefrom, any Borrower and any of their Subsidiaries may merge
into or consolidate with any other Person or permit any other Person to merge
into or consolidate with it; provided, however, that in each
case, immediately after giving effect thereto, in the case of any such merger
to which a Borrower is a party, a Borrower is the continuing or surviving
corporation; and  further  provided no Borrowing Base Entity
may merge into or consolidate with the Principal Borrower.


 


7.05                        Dispositions.


 


(a)                                  Unless
otherwise permitted under this Section 7.05, make any Dispositions
of any assets or Property during the term of this Agreement out of the ordinary
course of business unless the Borrowers will be in compliance, on a Pro Forma
Basis, with the covenants set forth in Sections 7.01, 7.02, 7.03,
and 7.11 of this Agreement and with all restrictions on Outstanding
Amounts contained herein; or


 


(b)                                 notwithstanding
anything contained herein to the contrary, make or permit to occur any
Dispositions of any material assets (including,
without limitation, capital stock or similar ownership interests) if an Event
of Default has occurred and is continuing or if such Disposition would
reasonably be expected to result in a Default or an Event of Default (unless
the Administrative Agent and Required Lenders have approved such Disposition in
writing, such consent to be granted or withheld in the discretion of the Administrative
Agent and Lenders);


 


(c)                                  make
any other Disposition or enter into any agreement to make any other
Disposition, except (in each case, to the extent such Disposition is for no
less than fair market value):


 


(i)                                     Dispositions of obsolete or worn out property,
whether now owned or hereafter acquired, in the ordinary course of business;


 


(ii)                                  Dispositions of equipment or real property to the
extent that (i) such property is exchanged for credit against the purchase
price of similar replacement property or (ii) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such
replacement property;


 


(iii)                               Dispositions of property by any Subsidiary to a
Borrower or to a wholly-owned Subsidiary; provided that if the transferor
of such property is a Borrower, the transferee thereof must either be a
Borrower; and


 


(iv)                              Dispositions permitted by Section 7.04;


 


provided,
that (y) this Section 7.05 shall not, in any case, be deemed
to prevent each Borrower from
leasing and/or subleasing its property and assets, as lessor or sublessor (as
the case may be) in the ordinary course of business (in each case, to the
extent the Borrowers are, following
any such transaction, in compliance, on a Pro Forma Basis with all of the
covenants set forth in this Article VII) and (z) the
provisions of Section 1.10 shall, to the extent inconsistent with
the terms of this Section 7.05, govern Dispositions of Borrowing
Base Properties.


 


7.06                        Restricted
Payments.


 


Permit any Consolidated Party to, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except (a) the Principal Borrower may make the distribution
contemplated by Section 6.11, the settlement referred to in Schedule
7.08 and other Restricted Payments in respect of its Equity Interests to
the extent not prohibited by Section 7.11(e), (b) each
Subsidiary may make Restricted Payments (directly or indirectly) to any
Borrower and any other Person that owns any Equity Interests in such
Subsidiary, ratably according to their respective holdings of the type of
Equity Interests in respect of which such Restricted Payment is being made, and
(c) a Borrower may declare and make dividend payments or other
distributions payable solely in the Equity Interests of such Person.


 


7.07                        Change
in Nature of Business.


 


Engage in any material line of business substantially
different from the business of acquiring, holding and, when appropriate,
disposing of income-producing real property assets that are majority leased to
government entities


 


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or any business or
investments substantially related or incidental thereto, providing investments
permitted by Section 7.03(g) shall not be deemed engaging in a
material line of business.


 


7.08                        Transactions
with Affiliates.


 


Enter into any transaction of any kind with any
Affiliate of any Borrower, whether or not in the ordinary course of business,
other than on fair and reasonable terms substantially as favorable to the
Borrowers or such Subsidiary as would be obtainable by such Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate; provided that the foregoing restriction shall
not apply to the contribution of property and assets to the Principal Borrower
by the Equity Investor, the distribution contemplated by Section 6.11
and the other agreements between the Principal Borrower and the Equity Investor
described in Schedule 7.08, or to transactions between or among the
Borrowers.


 


7.09                        Burdensome
Agreements.


 


(a)                                  Enter
into any Contractual Obligation that encumbers or restricts the ability of any
such Person to (i) pay dividends or make any other distributions to any
Borrower on its Equity Interests or with respect to any other interest or
participation in, or measured by, its profits, (ii) pay any Indebtedness
or other obligation owed to any Borrower, (iii) make loans or advances to
any Borrower, (iv) sell, lease or transfer any of its property to any
Borrower or (v) except in respect of any Consolidated Party which is not a
Borrower, (A) pledge its property pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof or (B) act
as a Borrower pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the
matters referred to in clauses (i)-(v)(A) above) for (1) this
Agreement and the other Loan Documents, (2) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien or (3) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under
Section 7.05 pending the consummation of such sale.


 


(b)                                 Enter
into any Contractual Obligation containing a Negative Pledge, or requiring the
grant of any security for any obligation if such Property is given as security
for the Obligations, except (i) in connection with any Permitted Lien or
any document or instrument governing any Permitted Lien, provided that
any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (ii) pursuant to customary restrictions
and conditions contained in any agreement relating to the sale of any property
permitted under Section 7.05, pending the consummation of such
sale.


 


7.10                        Use of
Proceeds.


 


Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.


 


7.11                        Financial
Covenants.


 


(a)                                  Consolidated
Tangible Net Worth.  Permit
Consolidated Tangible Net Worth at any time to be less than the sum of (i) $200,000,000,
and (ii) an amount equal to 75% of the aggregate increases in Shareholders’
Equity of the Principal Borrower and its Subsidiaries after the date hereof by
reason of the issuance and sale of Equity Interests of the Borrowers or any of
their Subsidiaries (other than issuances to the Principal Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt securities of
the Principal Borrower into such Equity Interests.


 


(b)                                 Consolidated Leverage Ratio.  Permit the
Consolidated Leverage Ratio to, at any time, be greater than 60.0%.


 


(c)                                  Consolidated Fixed Charge Coverage Ratio.  Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any calendar quarter
to be less than 1.65x.


 


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(d)                                 Consolidated
Floating Debt Limitation.  The amount
of Consolidated Floating Rate Debt (excluding Indebtedness hereunder) shall
not, at any time, exceed fifteen percent (15.0%) of the most-recently
calculated Total Asset Value.


 


(e)                                  Distribution
Limitation.  Permit, for any given
fiscal year of the Consolidated Parties, the aggregate sum of (i) the
amount of cash distributions (other than the distribution contemplated by Section 6.11
hereof and the settlement to be completed as described in Schedule 7.08)
made by the Consolidated Parties to the holders of their Equity Interests
(excluding any such holders of Equity Interests which are Consolidated Parties)
during such fiscal year plus (ii) the Adjusted Equity Buyback
Amount, to exceed the greater of (1) the FFO Distribution Allowance for
such fiscal year or (2) the amount necessary to maintain the status of the
Principal Borrower as a REIT that is not subject to income or excise taxation
under Sections 857 or 4981 of the Code.


 


7.12                        Amendments
of Organization Documents.


 


Prior to a Public Offering by the Principal Borrower,
amend any of the Principal Borrower’s or any other Borrowing Base Entity’s
Organization Documents except in connection with such Public Offering and, in
any case, amend any Borrowing Base Entity’s Organization Documents in a manner
which is adverse to the Secured Parties without the written consent of the
Required Lenders.


 


7.13                        Accounting
Changes.


 


Make any change in (a) accounting policies or
reporting practices, except as required by GAAP, or (b) fiscal year,
except with the written consent of the Administrative Agent.


 


7.14                        Ownership
of Subsidiaries.


 


Notwithstanding any other provisions of this Agreement
to the contrary, (a) permit any Person (other than a Borrower) to own any
Equity Interests of any Borrowing Base Entity, except to qualify directors
where required by applicable law, (b) permit any Borrowing Base Entity to
issue or have outstanding any shares of preferred Equity Interests or (c) permit,
create, incur, assume or suffer to exist any Lien on any Equity Interests
constituting Pledged Interests other than as permitted pursuant to Section 7.01(b).


 


7.15                        Leases.


 


Permit any Consolidated Party to enter into,
terminate, cancel, amend, restate, supplement or otherwise modify any Lease
relating to any Borrowing Base Property except to the extent that the entry
into, termination, cancellation, amendment, restatement, supplement or
modification is not reasonably likely to, in the aggregate with any other
then-existing conditions or circumstances, have a Material Adverse Effect.


 


7.16                        Sale
Leasebacks.


 


Permit any Consolidated Party to enter into any Sale
and Leaseback Transaction with respect to any Borrowing Base Property.


 


7.17                        Intentionally
Omitted.


 


7.18                        Additional
Borrowing Base Property Matters.


 


Permit (a) any Borrowing Base Property to cease
to be wholly owned by a Borrower or ground leased by a Borrower pursuant to an
Approved Ground Lease, except in connection with a Disposition completed in
accordance with Section 7.05; (b) the existence of any
material default or any event of default of a Borrower under any ground lease
underlying any Borrower’s ownership of any Borrowing Base Property; (c) any
Borrowing Base Property to cease to be encumbered by a first priority perfected
Lien (subject only to Permitted Liens) in favor of the Administrative Agent
(for the benefit of the Lenders, Administrative Agent and other secured parties
referenced herein), except in connection with a Disposition completed in
accordance with Section 1.10(d) any Borrowing Base


 


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Property to be subject to any Lien other than a Permitted Lien; or (d) at
any time during the term hereof, the number of Real Properties which qualify
hereunder as Borrowing Base Properties to, without the written consent of the
Designated Agents, be less than fifteen (15).


 


7.19                        Insurance
Proceeds and Condemnation Awards.


 


(a)                                  In
the event of any loss or damage to any portion of any Borrowing Base Property
due to fire or other casualty, or any taking of any portion of any Borrowing
Base Property by condemnation or under power of eminent domain, the
Administration Agent shall have the right, but not the obligation, to settle
insurance claims and condemnation claims or awards, unless the loss or damage
is less than $1,000,000.00.  If (i) the
loss or damage is less than $1,000,000.00, or (ii) the Administrative
Agent elects not to settle such claim or award, then the applicable Borrower
shall have the right to settle such claim or award without the consent of
Lender; provided that (A) such Borrower shall use the proceeds of any
claim or award to rebuild or restore the applicable Borrowing Base Property
substantially to its condition prior to the casualty or condemnation to the
extent permitted by Laws and (B) such Borrower shall provide the Administrative
Agent with notice of the casualty or condemnations.  Failure to use the insurance proceeds
received directly from the insurance company to rebuild and restore shall
constitute an Event of Default. 
Notwithstanding the foregoing, provided that the conditions set forth in
(A) and (B) above are satisfied and so long as each of the following (1) through
(4) is satisfied, the Borrowers shall have the right to settle claims or
awards for more than $1,000,000.00, provided that the Administrative Agent
shall have the right to settle any claim or award that the Borrowers have not
settled on or before one year after the date of such loss or prior to the date
of such taking.  If (1) no Event of
Default exists under this Agreement or the other Loan Documents; (2) no
monetary Event of Default has occurred during the preceding twelve (12) months;
(3) the proceeds or awards received by the Administrative Agent, together
with any additional funds deposited with the Administrative Agent by the
Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion,
either to restore the affected Borrowing Base Property substantially to its
condition before the casualty or to remedy the condemnation; and (4) the
Borrowing Base Property will continue to qualify as a Borrowing Base Property
following the completion of any such repairs or restoration, then the Borrowers
shall be entitled to use the insurance or condemnation proceeds to rebuild the
affected Borrowing Base Property or to remedy the effect of the condemnation,
as the case may be.  In all other cases,
the Administrative Agent shall have the right (but not the obligation) to
collect, retain and apply to the Indebtedness all insurance and condemnation
proceeds (after deduction of all expense of collection and settlement,
including reasonable attorney and adjusters’ fees and expenses).  Any proceeds remaining after application to
the Indebtedness shall be paid by the Administrative Agent to the Borrowers or
the party then entitled thereto.


 


(b)                                 If
the Administrative Agent does not elect to or is not entitled to apply casualty
proceeds or condemnation awards to the Indebtedness and if the Borrowers are
not entitled to settle such claims, all as provided under Section 7.19(a),
the Administrative Agent shall have the right (but not the obligation) to
settle, collect and retain such proceeds, and after deduction of all reasonable
expenses of collection and settlement, including reasonable attorney and
adjusters’ fees and expenses, to release the same to the applicable Borrower
periodically, provided that such Borrower shall:


 


(i)                                     expeditiously
repair and restore all damage to the portion of the Borrowing Base Property in
question resulting from such casualty or condemnation, including completion of
the construction if such fire or other casualty shall have occurred prior to
completion, so that the Borrowing Base Property continue to qualify as a
Borrowing Base Property following such construction; and


 


(ii)                                  if the casualty
proceeds or condemnation awards are, in the Administrative Agent’s reasonable
judgment, insufficient to complete the repair and restoration of the buildings,
structures and other improvements constituting the Borrowing Base Property as
aforesaid, then the Borrowers shall promptly deposit with the Administrative
Agent the amount of such deficiency.


 


Any request by a Borrower
for a disbursement by the Administrative Agent of casualty proceeds or
condemnation awards by the Borrowers pursuant to this Section 7.19
and the disbursement thereof shall be conditioned upon the Borrowers’
compliance with and satisfaction of the same conditions precedent as would be
applicable in connection with construction loans made by institutional lenders
for projects similar to the affected Borrowing Base Property,


 


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including approval of
plans and specifications, submittal of evidence of completion, updated title
insurance, lien waivers, and other customary safeguards.


 


ARTICLE
VIII


 


EVENTS
OF DEFAULT AND REMEDIES


 


8.01                        Events
of Default.


 


Any of the following shall constitute an Event of
Default:


 


(a)                                  Non-Payment.  The Borrowers fail to (i) pay when and
as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation or deposit any funds as Cash Collateral in respect of L/C
Obligations, or (ii) pay within three (3) days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) pay within five (5) days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or


 


(b)                                 Specific Covenants.  The Borrowers (or any of them)
(i) fail to perform or observe (without any cure period other than as may
be specifically provided in such provision) any term, covenant or agreement
contained in any of Section 6.11, 6.14, 6.18(a) or
Article VII (other than Section 7.19 thereof); or (ii) fail
to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03, 6.05, 6.18(b) or (c) or
7.19 and such failure continues for fifteen (15) days after the earlier
of (A) any Borrower’s obtaining knowledge thereof or (B) the delivery
of notice from the Administrative Agent; or


 


(c)                                  Other Defaults.  Any Borrower fails to perform
or observe any other covenant or agreement (not specified in Section 8.01(a) or
(b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for thirty (30) days after the
earlier of (i) any Borrower’s obtaining knowledge thereof or (ii) the
delivery of notice from the Administrative Agent; provided if the
Borrowers are using diligent efforts to cure such failure, the Borrowers shall
have an additional sixty (60) days to cure any such failure; or


 


(d)                                 Representations and Warranties.  Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of any Borrower  herein, in any
other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; or


 


(e)                                  Cross-Default.


 


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


 


(ii)                                  there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which a Borrower or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract)
or (B) any


 


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Termination
Event (as so defined) under such Swap Contract as to which a Borrower or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by such Borrower or such Subsidiary as a result
thereof is greater than the Threshold Amount; or


 


(f)                                    Insolvency Proceedings, Etc.  Any
Borrower institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)                                 Inability to Pay Debts; Attachment.  (i) Any
Borrower becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within thirty (30) days after its issue or levy; or


 


(h)                                 Judgments.  There is entered against any Borrower (i) one
or more final judgments or orders for the payment of money in an aggregate
amount (as to all such judgments and orders) exceeding the Threshold Amount (to
the extent not covered by independent third-party insurance maintained with
financially sound and reputable insurance companies, has been notified of the
potential claim and does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of thirty (30)
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


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


 


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


 


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


 


(l)                                     Collateral Documents.  Any
Collateral Document after delivery thereof pursuant to Section 4.01
or 6.12 shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien (subject to Liens
permitted by Section 7.01) on the Collateral purported to be
covered thereby; or


 


(m)                               REIT or QRS Status.  The Principal Borrower shall,
for any reason, lose or fail to maintain its status either as a REIT or a QRS;
or


 


(n)                                 Subordination.  (i)  The subordination
provisions of the documents evidencing or governing any Indebtedness
subordinated to the Obligations (the “Subordinated Provisions”) shall,
in whole or in part, terminate, cease to be effective or cease to be legally
valid, binding and enforceable against any holder of the applicable
subordinated Indebtedness; or (ii) any Borrower shall, directly or
indirectly, disavow or contest in any manner (A) the effectiveness,
validity or enforceability of any of the Subordination Provisions, (B) that
the Subordination Provisions exist for the benefit of the Administrative Agent,
the Lenders and the L/C Issuer or (C) that all payments


 


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of principal of or premium and
interest on the applicable subordinated Indebtedness, or realized from the
liquidation of any property of any Borrower, shall be subject to any of the
Subordination Provisions.


 


8.02                        Remedies
upon Event of Default.


 


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


 


(a)                                  declare the commitment of each Lender to make Loans
and any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;


 


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


 


(c)                                  require that the Borrowers Cash Collateralize the
L/C Obligations (in an amount equal to the then Outstanding Amount thereof);
and


 


(d)                                 exercise on behalf of itself, the Lenders and the
L/C Issuer all rights and remedies available to it, the Lenders and the L/C
Issuer under the Loan Documents;


 


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrowers under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further
act of the Administrative Agent or any Lender.


 


8.03                        Application
of Funds.


 


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


 


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


 


Second, to
payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) arising under
the Loan Documents and amounts payable under Article III, ratably
among them in proportion to the respective amounts described in this clause Second
payable to them;


 


Third, to
payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other
Obligations arising under the Loan Documents, ratably among the Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause Third
payable to them;


 


Fourth, to
payment of that portion of the Obligations constituting unpaid principal of the
Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements
and Secured Cash Management Agreements, ratably among the Lenders, the L/C
Issuer, the Hedge Banks and the Cash Management Banks in proportion to the
respective amounts described in this clause Fourth held by them;


 


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Fifth, to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and


 


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


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.


 


Notwithstanding the
foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a
party to the Credit Agreement that has given the notice contemplated by the
preceding sentence shall, by such notice, be deemed to have acknowledged and
accepted the appointment of the Administrative Agent pursuant to the terms of Article IX
hereof for itself and its Affiliates as if a “Lender” party hereto.


 


ARTICLE
IX


 


ADMINISTRATIVE
AGENT


 


9.01                        Appointment
and Authority.


 


(a)                                  Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and no Borrower shall
have rights as a third party beneficiary of any of such provisions.


 


(b)                                 The
Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the
Lenders (including in its capacities as a potential Hedge Bank and a potential
Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender and the
L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Borrowers to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental
thereto.  In this connection, the
Administrative Agent, as “collateral agent” and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


9.02                        Rights
as a Lender.


 


The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrowers or any of their Subsidiaries or other


 


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Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


9.03                        Exculpatory
Provisions.


 


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


 


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


 


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


 


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


 


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


 


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


 


9.04                        Reliance
by Administrative Agent.


 


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


 


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9.05                        Delegation
of Duties.


 


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


 


9.06                        Resignation
of Administrative Agent.


 


The Administrative Agent may, upon thirty (30) days
prior written notice to the Lenders, the L/C Issuer and the Borrowers, resign
in its capacity as such.  In addition,
the Administrative Agent shall resign at the written direction of the Required
Lenders to the extent (a) Administrative Agent becomes the subject of a
bankruptcy, insolvency, conservatorship, receivership, custodianship or similar
proceeding, or (b) the Administrative Agent is shown to be grossly
negligent in the performance of its material obligations and/or duties
hereunder or to have engaged in willful misconduct in the performance of such obligations
and/or duties.  Upon receipt of any such
notice of resignation or upon any removal of the Administrative Agent by the
Required Lenders, the Required Lenders shall have the right, in consultation
with the Borrowers, to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States.  In the case of a
retiring Administrative Agent, if no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders
or the L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  In the case of the removal of an
Administrative Agent by the Required Lenders, such removal shall constitute the
immediate termination of such Administrative Agent’s position hereunder and (1) the
removed Administrative Agent shall be immediately discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in
the case of any collateral security held by the Administrative Agent on behalf
of the Lenders or the L/C Issuer under any of the Loan Documents, the removed Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) or removed Administrative Agent, and the retiring or
removed Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees payable by the Borrowers to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such
successor.  After the retiring or removed
Administrative Agent’s resignation or removal hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring or removed Administrative Agent was acting as Administrative Agent.


 


Any resignation by or removal of Bank of America as
Administrative Agent pursuant to this Section shall also constitute its
resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (i) such successor shall
succeed to and become vested with all of


 


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the rights, powers,
privileges and duties of the retiring or removed L/C Issuer and Swing Line
Lender, (ii) the retiring or removed L/C Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (iii) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring or removed L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.


 


9.07                        Non-Reliance
on Administrative Agent and Other Lenders.


 


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


 


9.08                        No
Other Duties, Etc.


 


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


 


9.09                        Administrative
Agent May File Proofs of Claim.


 


In case of the pendency of any proceeding under any
Debtor Relief Law or any other judicial proceeding relative to any Borrower,
the Administrative Agent (irrespective of whether the principal of any Loan or
L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(a)                                  to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the L/C
Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and


 


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


 


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C
Issuer to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.09 and 10.04.


 


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


 


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9.10                        Collateral
and Guaranty Matters.


 


Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,


 


(a)                                  to release any Lien on any property granted to or
held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Commitments (including any contingent commitments
related to any Convertible Term A Prepaid Principal) and payment in full of all
Obligations (other than (A) contingent indemnification obligations and (B) obligations
and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements as to which arrangements satisfactory to the applicable Cash
Management Bank of Hedge Bank shall have been made) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the L/C Issuer
shall have been made), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii)  if approved, authorized or ratified in writing in accordance
with Section 10.01;


 


(b)                                 to release any Borrower (other than the Principal
Borrower) from its obligations hereunder if such Person ceases to be required
to be a Borrower hereunder pursuant to the terms hereof and as a result of a
transaction permitted hereunder; and


 


(c)                                  to subordinate any Lien on any property granted to
or held by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 7.01.


 


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release a Borrower from its
obligations hereunder pursuant to this Section 9.10.  In each case as specified in this Section 9.10,
the Administrative Agent will, at the Borrower’s expense, execute and deliver
to the applicable Borrower such documents as such Borrower may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents or to subordinate
its interest in such item, or to release such Borrower from its obligations
hereunder, in each case in accordance with the terms of the Loan Documents and
this Section 9.10.


 


9.11                        Secured
Cash Management Agreements and Secured Hedge Agreements.


 


Except as otherwise expressly set forth herein or in
any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the
benefits of Section 8.03, any Collateral by virtue of the
provisions hereof or of any Collateral by virtue of the provisions hereof or of
any Collateral Document shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and, in
such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX
to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Secured Cash Management Agreements and Secured
Hedge Agreements unless the Administrative Agent has received written notice of
such Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be.


 


ARTICLE
X


 


MISCELLANENOUS


 


10.01                 Amendments,
Etc.


 


No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by any Borrower
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Principal Borrower (on behalf of each Borrower) and acknowledged by the
Administrative Agent, and each such


 


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waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:


 


(a)                                  waive any condition set forth in Section 4.01
(other than Section 4.01(b)(i) or (c)), or, in Section 4.02,
without the written consent of each Lender;


 


(b)                                 [intentionally omitted];


 


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


 


(d)                                 postpone any date fixed by this Agreement or any
other Loan Document for (i) any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under such other Loan Document without the written consent of each
Lender entitled to such payment or (ii) any scheduled reduction of any Facility
hereunder or under any other Loan Document without the written consent of each
Appropriate Lender;


 


(e)                                  reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable
defined term) used in determining the Applicable Rate that would result in a
reduction of any interest rate on any Loan or any fee payable hereunder without the written consent of each Lender entitled
to such amount;


 


(f)                                    change the definitions of
the terms “Mortgageability Amount” or “Collateral Value Amount” or the
components thereof without the written consent of the Designated Agents and the
Required Lenders;


 


(g)                                 change any provision of this Section 10.01
or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; or


 


(h)                                 (i) release all or substantially all of the
Collateral in any transaction or series of related transactions or (ii) release
any Borrower (except to the extent otherwise specifically provided herein,
including Section 1.10) or any other Person responsible for payment
of all or any portion of the Obligations from its obligations under the Loan
Documents, without, in either case, the written consent of each Lender;


 


and provided, further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuer in addition to the Lenders required above, affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Lender
in addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto.  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender.


 


If
any Lender does not consent to a proposed amendment, waiver, consent or release
with respect to any Loan Document that requires the consent of each Lender and
that has been approved by the Required Lenders, the Borrowers may replace such
non-consenting Lender in accordance with Section 10.13; provided
that such amendment, waiver, consent or release can be effected as a result of
the assignment contemplated by such Section (together with all other such
assignments required by the Borrowers to be made pursuant to this paragraph).


 


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10.02                 Notices;
Effectiveness; Electronic Communications.


 


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


 


(i)                                     if to any Borrower, the Administrative Agent,
the L/C Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02 (provided, that all communications to the Borrowers may, in
any case, be delivered to the Principal Borrower and all such communications
delivered to the Principal Borrower shall, in each such case, be deemed to have
been delivered to each Borrower); and


 


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


 


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


 


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


 


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


 


(c)                                  The Platform.  THE PLATFORM IS PROVIDED “AS
IS” AND “AS AVAILABLE.”  THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to any
Borrower, any Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no


 


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event shall any Agent Party have
any liability to any Borrower, any Lender, the L/C
Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).


 


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


 


(e)                                  Reliance by Administrative Agent, L/C Issuer and
Lenders.  The Administrative Agent, the L/C Issuer and
the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrowers even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrowers shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
any Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


10.03                 No Waiver;
Cumulative Remedies; Enforcement.


 


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


 


Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the authority
to enforce rights and remedies hereunder and under the other Loan Documents
against the Borrowers or any of them shall be vested exclusively in, and all
actions and proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuer or the Swing Line Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line
Lender, as the case may be) hereunder and under the other Loan Documents, (c) any
Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.13), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Borrower under any Debtor
Relief Law; and provided, further, that if at any time there is
no Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.13, any Lender may, with
the


 


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consent of the Required
Lenders, enforce any rights and remedies available to it and as authorized by
the Required Lenders.


 


10.04                 Expenses;
Indemnity; Damage Waiver.


 


(a)                                  Costs
and Expenses.  The Borrowers shall
pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any outside counsel for the Administrative Agent, any
Lender or the L/C Issuer), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent, any Lender or the
L/C Issuer, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with Loans made or Letters
of Credit issued hereunder, including all such reasonable out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit or (C) in connection with any
bankruptcy or insolvency of any Borrower.


 


(b)                                 Indemnification by the Borrower.  The
Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Borrower arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents (including in
respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by any Borrower or any of their Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any of their
Subsidiaries, (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Borrower or
any Borrower’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party
thereto and (v) the failure of any of the Borrowers’ representations or
warranties to be true and correct in all material respects; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by any Borrower against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if any Borrower has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.


 


(c)                                  Reimbursement by Lenders.  To the
extent that any Borrower for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the


 


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Administrative Agent (or any such
sub-agent) or the L/C Issuer in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)                                 Waiver of Consequential Damages, Etc.  To the
fullest extent permitted by applicable law, no Borrower shall assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


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


 


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


 


10.05                 Payments Set
Aside.


 


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


 


10.06                 Successors and
Assigns.


 


(a)                                  Successors
and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that no Borrower may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of Section 10.06(b),
(ii) by way of participation in accordance with the provisions of Section 10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f) (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


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(b)                                 Assignments by Lenders.  Any Lender
may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment(s) and the Loans (including for purposes of this Section 10.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:


 


(i)                                     Minimum Amounts.


 


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


 


(B)                                in
any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Principal Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met;


 


(ii)                                  Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned and must, in compliance with the provisions of Section 2.01(d) hereof,
be of an equal pro rata share of each Aggregate Credit Exposure of such
assigning Lender with respect to each of the Facilities, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and
obligations in respect of Swing Line Loans;


 


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


 


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


 


(B)                                the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (1) any
Term A Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable
Facility, an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (2) any Term A Loan to a Person that is not a Lender, an
Affiliate of a Lender or an Approved Fund;


 


(C)                                the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and


 


(D)                               the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of the Revolving
Credit Facility.


 


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


 


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


 


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


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment.  Upon request, the
Borrowers (at their expense) shall execute and deliver a Note to the assignee
Lender.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with Section 10.06(d).


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations 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 Borrowers, 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 Borrowers and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.


 


(d)                                 Participations.  Any Lender may at any time,
without the consent of, or notice to, any Borrower or the Administrative Agent,
sell participations to any Person (other than a natural person or a Borrower or
any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Section 10.06(b).  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)                                  Limitations upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04  than the applicable Lender would
have been entitled to receive with respect to 


 


103

















 


the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Principal Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrowers are notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


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


 


(g)                                 Resignation
as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Revolving
Credit Commitment and Revolving Credit Loans pursuant to Section 10.06(b),
Bank of America may, (i) upon thirty
(30) days’ notice to the Borrowers and the Lenders, resign as L/C Issuer
and/or (ii) upon thirty (30)
days’ notice to the Borrowers, resign as Swing Line Lender.  In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Borrowers shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrowers to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be.  If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/C Issuer
and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


10.07                 Treatment of
Certain Information; Confidentiality.


 


Each of the Administrative Agent, the Lenders and the
L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.15 or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to any Borrower and its
obligations, (g) with the consent of the Borrowers or (h) to the
extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than a Borrower.


 


For purposes of this
Section, “Information” means all information received from any Borrower
or any Subsidiary thereof relating to any Borrower or any Subsidiary thereof or
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential 


 


104

















 


basis prior to disclosure
by any Borrower or any Subsidiary thereof, provided that, in the case of
information received from a Borrower or any such Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Each of the
Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning any Borrower
or any Subsidiary thereof, as the case may be, (b) it has developed
compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable
Law, including United States Federal and state securities Laws.


 


10.08                 Right of
Setoff.


 


If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent
(not to be unreasonably withheld or delayed), to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender, the L/C Issuer or any such Affiliate to or for the credit or the
account of any Borrower against any and all of the obligations of any of the
Borrowers now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrowers may be
contingent or unmatured or are owed to a branch or office of such Lender or the
L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have.  Each Lender and the
L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.


 


10.09                 Interest Rate
Limitation.


 


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


 


10.10                 Counterparts;
Integration; Effectiveness.


 


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


 


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10.11                 Survival of
Representations and Warranties.


 


All representations and warranties made hereunder and
in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof.  Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


 


10.12                 Severability.


 


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


 


10.13                 Replacement of
Lenders.


 


If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
if any Lender is a Defaulting Lender or
if any other circumstance exists hereunder that gives the Borrowers the right
to replace a Lender as a party hereto, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:


 


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


 


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


 


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


 


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


 


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


 


10.14                 Governing Law;
Jurisdiction; Etc.


 


(a)                                  GOVERNING
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


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


 


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


 


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


 


10.15                 Waiver of Jury
Trial.


 


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


 


10.16                 No Advisory or
Fiduciary Responsibility.


 


In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), each of the Borrowers
acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent and BAS are
arm’s-length commercial transactions between the Borrowers and their respective Affiliates, on the
one hand, and the Administrative Agent and BAS, on the other hand, (B) each
of the Borrowers has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) each of the
Borrowers is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent and BAS each is and has been acting
solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an


 


107

















 


advisor, agent or fiduciary for the Borrowers or any of their
respective Affiliates, or any other Person and (B) neither the
Administrative Agent nor BAS has
any obligation to the Borrowers or
any of their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and BAS and
their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrowers and their respective Affiliates, and neither the Administrative Agent
nor BAS has any obligation to disclose any of such interests to the Borrowers
or any of their respective Affiliates. 
To the fullest extent permitted by law, each of the Borrowers hereby
waives and releases any claims that it may have against the Administrative
Agent and BAS with respect to
any breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.


 


10.17                 Electronic
Execution of Assignments and Certain Other Documents.


 


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


 


10.18                 USA PATRIOT
Act.


 


Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers that pursuant to the requirements of the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify each Borrower in
accordance with the Act.  The Borrowers
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.


 


10.19                 Time of the
Essence.


 


Time is of the essence with respect the Loan Documents
and the transactions contemplated therein.


 


10.20                 California
Judicial Review.


 


If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of
the transactions contemplated by this Agreement or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to
California Code of Civil Procedure Section 638 to a referee (who shall be
a single active or retired judge) to hear and determine all of the issues in
such action or proceeding (whether of fact or of law) and to report a statement
of decision, provided that at the option of any party to such
proceeding, any such issues pertaining to a “provisional remedy” as defined in
California Code of Civil Procedure Section 1281.8 shall be heard and
determined by the court, and (b) without limiting the generality of Section 10.04,
the Borrowers shall be solely responsible to pay all fees and expenses of any
referee appointed in such action or proceeding.


 


10.21                 LIMITATION OF
LIABILITY OF TRUSTEE.


 


THE AMENDED AND RESTATED DECLARATION OF TRUST OF THE
PRINCIPAL BORROWER DATED APRIL 15, 2009, A COPY OF WHICH IS DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME “GOVERNMENT PROPERTIES INCOME TRUST” REFERS TO THE TRUSTEES UNDER SUCH
DECLARATION OF TRUST COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR


 


108

















 


PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR
AGENT OF THE PRINCIPAL BORROWER SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE PRINCIPAL
BORROWER.  ALL PERSONS DEALING WITH THE
PRINCIPAL BORROWER IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF THE PRINCIPAL
BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


10.22                 ENTIRE
AGREEMENT.


 


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


 


10.23                 SNDA Matters.


 


Upon any Borrower’s written request, the
Administrative Agent shall promptly (and in and any event within thirty (30)
days following the Administrative Agent’s receipt of any such request) execute
and deliver to any tenant under any Borrowing Base Lease a subordination,
non-disturbance and attornment agreement in a form and substance consistent
with the reasonable requirements of such Borrowing Base Lease, or, with respect
to any Lease which is not a Borrowing Base Lease but which demises not less
than 5,000 rentable square feet, in a commercially reasonable form and
substance (in either case, (an “SNDA”). 
Each of the Lenders hereby appoints the Administrative Agent as the true
and lawful attorney of such Lender to execute any such SNDA on their
behalf.  If the Administrative Agent
fails to either (a) execute and delivery any such SNDA within thirty (30)
days after receiving any proposed SNDA for execution or (b) send to the
applicable Borrower a written notice specifying the reasons why any proposed
SNDA is not acceptable within thirty (30) days after receiving any such
proposed SNDA, then the Administrative Agent shall be deemed to have approved
such SNDA as so presented and, notwithstanding anything contained herein to the
contrary, the tenant for whom such SNDA was requested shall be permitted to
rely upon the terms and conditions of such SNDA as if it had been executed and
delivered by the Administrative Agent.


 


10.24                 Sale of 9173
Sky Park Court.


 


The Lenders acknowledge that (a) the Borrowing
Base Property in San Diego California which contains the building having a
street address at 9174 Sky Park Court is located on a parcel of land which also
contains the building having an address at 9173 Sky Park Court, (b) such
Borrowing Base Property is subject to a Building Lease, dated as of April 24,
2009, between Government Properties Income Trust LLC and Hub Properties Trust
and Reciprocal Operating Agreement, dated as of April 24, 2009, between
Government Properties Income Trust LLC and Hub Properties Trust (collectively,
the “Sky Park Documents”), which Sky Park Documents constitute Permitted
Liens for all purposes under this Agreement and (c) the Sky Park Documents
obligate Government Properties Income Trust LLC to sell to Hub Properties
Trust, and Hub Properties Trust to purchase from Government Properties Income
Trust LLC, the building and a portion of the land on which 9173 Sky Park Court
is located following the separation of the land on which 9173 Sky Park Court is
located from the land on which 9174 Sky Park Court is located, all as further
described in the Sky Park Documents.  The
Lenders agree that, notwithstanding anything contained in this Agreement or the
applicable Mortgage to the contrary, in connection with any sale of the land
and building having an address at 9173 Sky Park Court from Government
Properties Income Trust LLC to Hub Properties Trust in accordance with the
terms and conditions of the Sky Park Documents, the Administrative Agent shall
promptly execute and deliver any such documents or instruments as Government
Properties Income Trust LLC or Hub Properties Trust may request in order to
permit the land and building comprising 9173 Sky Park Court to be transferred
and conveyed free and clear of the lien of the applicable Mortgage.


 


10.25                 New York
Mortgage Matters.


 


(a)                                  Notwithstanding
anything contained in this Agreement to the contrary, all parties hereto
acknowledge and agree that the maximum principal amount secured by one or more
Mortgages encumbering a Borrowing Base Property located in the State of New
York, whether at execution or which under any contingency


 


109














 


may become secured
thereby at any time hereafter, shall be the amount for which all applicable
taxes due under Article 11 of the New York Tax Law have been paid with
respect to such Borrowing Base Property (the “NY Maximum Principal Amount”).  All parties agree that the NY Maximum
Principal Amount for the Borrowing Base Property located at 130-138 Delaware
Avenue, Buffalo, New York shall initially be $13,300,000.00.  Except as otherwise directed by Principal
Borrower, so long as the Total Outstandings remain at least equal to the NY
Maximum Principal Amount, any payments and repayments of the Obligations shall
not be applied against, or reduce, the principal amount secured by the
Borrowing Base Propert(y)(ies) located in the State of New York (the “NY
Principal”).  All payments and
repayments of NY Principal shall be applied against the amount secured by the
Borrowing Base Propert(y)(ies) located in the State of New York as Principal
Borrower shall direct.


 


(b)                                 Provided
the applicable Borrower(s) would otherwise be entitled in accordance with
the terms of the Loan Documents to receive the release or discharge of a
Mortgage encumbering a Borrowing Base Property located in the State of New
York, Administrative Agent shall cooperate with any request by Principal
Borrower for an assignment (without recourse or representation) to a new lender
providing a portion of the funds necessary to obtain such release or discharge.


 


[remainder of page left
intentionally blank – signature pages, schedules and exhibits to follow]


 


110

















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.


 


 


	
   

  	
  GOVERNMENT PROPERTIES
  INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  David
  M. Blackman

  
	
   

  	
   

  	
  Treasurer
  and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GOVERNMENT PROPERTIES
  INCOME TRUST LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  David
  M. Blackman

  
	
   

  	
   

  	
  Treasurer
  and Chief Financial Officer

  



 


111

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  Michael W. Edwards

  
	
   

  	
  TITLE:

  	
  Senior Vice President

  



 


112

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  AS A LENDER, L/C ISSUER AND SWING LINE LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  Michael W. Edwards

  
	
   

  	
  TITLE:

  	
  Senior Vice President

  



 


113

















 


	
   

  	
  WELLS FARGO BANK, N.A.,
  AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  Kimberly A. Dail

  
	
   

  	
  TITLE:

  	
  Senior Vice President

  



 


114

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,
  AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  David Heller

  
	
   

  	
  TITLE:

  	
  Vice President

  



 

















 


	
   

  	
  MORGAN STANLEY BANK,
  N.A., AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
   

  
	
   

  	
  TITLE:

  	
   

  



 

















 


	
   

  	
  ROYAL BANK OF CANADA,
  AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  Andrew D. Brown

  
	
   

  	
  TITLE:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
  John Rhinelander

  
	
   

  	
  TITLE:

  	
  Authorized Signatory

  



 

















 


	
   

  	
  CITICORP NORTH AMERICA
  INC, AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
   

  
	
   

  	
  TITLE:

  	
   

  



 

















 


	
   

  	
  REGIONS BANK, AS A
  LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
   

  
	
   

  	
  TITLE:

  	
   

  



 

















 


	
   

  	
  UBS LOAN FINANCE LLC,
  AS A LENDER

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
  NAME:

  	
   

  
	
   

  	
  TITLE: