Exhibit 10.1


 


EXECUTION COPY


 




 





AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of January 25, 2005


 


by and among


 


HRPT PROPERTIES TRUST,


as
Borrower


 


WACHOVIA CAPITAL
MARKETS, LLC,


as Sole Arranger


and Book Manager,


 


WACHOVIA BANK,
NATIONAL ASSOCIATION,


as Administrative Agent,


 


Each of


RBC CAPITAL
MARKETS


 


and


 


SUNTRUST BANK,


as Syndication Agents,


 


Each of


THE BANK OF NEW
YORK


 


and


COMMERZBANK
AKTIENGESELLSCHAFT, NEW YORK BRANCH,


as Documentation Agents,


 


and


 


THE FINANCIAL INSTITUTIONS PARTY HERETO


AND THEIR ASSIGNEES UNDER SECTION 12.5.,


as
Lenders




 





 





















 


TABLE OF CONTENTS


 


	
  Article I.  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1. 

  	
   

  	
  Definitions

  	
   

  
	
  Section 1.2.
  

  	
   

  	
  General;
  References to Times

  	
   

  
	
  Section 1.3.
  

  	
   

  	
  Effectiveness
  of Euro Provisions

  	
   

  
	
  Section 1.4..

  	
   

  	
  Currencies;
  Currency Equivalent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article II.  Credit Facility

  	
   

  
	
   

  	
   

  
	
  Section 2.1.

  	
   

  	
  Revolving Loans

  	
   

  
	
  Section 2.2.
  

  	
   

  	
  Alternate
  Currency Loans

  	
   

  
	
  Section 2.3. 

  	
   

  	
  Swingline Loans

  	
   

  
	
  Section 2.4.
  

  	
   

  	
  Letters of Credit

  	
   

  
	
  Section 2.5.
  

  	
   

  	
  Rates
  and Payment of Interest on Loans

  	
   

  
	
  Section 2.6.
  

  	
   

  	
  Number
  of Interest Periods

  	
   

  
	
  Section 2.7.
  

  	
   

  	
  Repayment of
  Loans

  	
   

  
	
  Section 2.8. 

  	
   

  	
  Prepayments

  	
   

  
	
  Section 2.9. 

  	
   

  	
  Continuation

  	
   

  
	
  Section 2.10. 

  	
   

  	
  Conversion

  	
   

  
	
  Section 2.11. 

  	
   

  	
  Notes

  	
   

  
	
  Section 2.12.
  

  	
   

  	
  Voluntary
  Reductions of the Commitment

  	
   

  
	
  Section 2.13.
  

  	
   

  	
  Extension
  of Termination Dates

  	
   

  
	
  Section 2.14.

  	
   

  	
  Expiration
  or Maturity Date of Letters of Credit Past Termination Date

  	
   

  
	
  Section 2.15.
  

  	
   

  	
  Amount
  Limitations

  	
   

  
	
  Section 2.16.
  

  	
   

  	
  Increase
  of Commitments

  	
   

  
	
   

  	
   

  
	
  Article III.  Payments, Fees and Other General Provisions

  	
   

  
	
   

  	
   

  
	
  Section 3.1. 

  	
   

  	
  Payments

  	
   

  
	
  Section 3.2.
  

  	
   

  	
  Pro Rata
  Treatment

  	
   

  
	
  Section 3.3.
  

  	
   

  	
  Sharing of
  Payments, Etc

  	
   

  
	
  Section 3.4.
  

  	
   

  	
  Several
  Obligations

  	
   

  
	
  Section 3.5. 

  	
   

  	
  Minimum Amounts

  	
   

  
	
  Section 3.6. 

  	
   

  	
  Fees

  	
   

  
	
  Section 3.7. 

  	
   

  	
  Computations

  	
   

  
	
  Section 3.8. 

  	
   

  	
  Usury

  	
   

  
	
  Section 3.9.

  	
   

  	
  Agreement
  Regarding Interest and Charges

  	
   

  
	
  Section 3.10.
  

  	
   

  	
  Statements
  of Account

  	
   

  
	
  Section 3.11.
  

  	
   

  	
  Defaulting
  Lenders

  	
   

  
	
  Section 3.12. 

  	
   

  	
  Taxes

  	
   

  
	
   

  	
   

  
	
  Article IV.  Yield Protection, Etc.

  	
   

  
	
   

  	
   

  
	
  Section 4.1.

  	
   

  	
  Additional
  Costs; Capital Adequacy

  	
   

  
	
  Section 4.2.

  	
   

  	
  Suspension
  of LIBOR Loans

  	
   

  
	
  Section 4.3. 

  	
   

  	
  Illegality

  	
   

  
	
  Section 4.4.

  	
   

  	
  Compensation

  	
   

  
							



 





















 


	
  Section 4.5.

  	
   

  	
  Affected Lenders

  	
   

  
	
  Section 4.6.

  	
   

  	
  Treatment
  of Affected Loans

  	
   

  
	
  Section 4.7.

  	
   

  	
  Change of
  Lending Office

  	
   

  
	
  Section 4.8.

  	
   

  	
  Assumptions
  Concerning Funding of LIBOR Loans

  	
   

  
	
  Section 4.9.

  	
   

  	
  Redenominations

  	
   

  
	
  Section 4.10.

  	
   

  	
  Exchange
  Indemnification

  	
   

  
	
  Section 4.11.

  	
   

  	
  Regulatory
  Limitation

  	
   

  
	
   

  	
   

  
	
  Article V.
  Conditions Precedent

  	
   

  
	
   

  	
   

  
	
  Section 5.1.

  	
   

  	
  Initial
  Conditions Precedent

  	
   

  
	
  Section 5.2.

  	
   

  	
  Conditions
  Precedent to All Loans and Letters of Credit

  	
   

  
	
  Section 5.3.

  	
   

  	
  Conditions
  as Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VI.
  Representations and Warranties

  	
   

  
	
   

  	
   

  
	
  Section 6.1.

  	
   

  	
  Representations
  and Warranties

  	
   

  
	
  Section 6.2.

  	
   

  	
  Survival
  of Representations and Warranties, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VII.
  Affirmative Covenants

  	
   

  
	
   

  	
   

  
	
  Section 7.1.

  	
   

  	
  Preservation
  of Existence and Similar Matters

  	
   

  
	
  Section 7.2.

  	
   

  	
  Compliance
  with Applicable Law and Material Contracts

  	
   

  
	
  Section 7.3.

  	
   

  	
  Maintenance
  of Property

  	
   

  
	
  Section 7.4.

  	
   

  	
  Conduct of
  Business

  	
   

  
	
  Section 7.5.

  	
   

  	
  Insurance

  	
   

  
	
  Section 7.6.

  	
   

  	
  Payment
  of Taxes and Claims

  	
   

  
	
  Section 7.7.

  	
   

  	
  Visits and
  Inspections

  	
   

  
	
  Section 7.8.

  	
   

  	
  Use
  of Proceeds; Letters of Credit

  	
   

  
	
  Section 7.9.

  	
   

  	
  Environmental
  Matters

  	
   

  
	
  Section 7.10.

  	
   

  	
  Books and
  Records

  	
   

  
	
  Section 7.11.

  	
   

  	
  Further
  Assurances

  	
   

  
	
  Section 7.12.

  	
   

  	
  New
  Subsidiaries/Guarantors

  	
   

  
	
  Section 7.13.

  	
   

  	
  REIT Status

  	
   

  
	
  Section 7.14.

  	
   

  	
  Exchange Listing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VIII.
  Information

  	
   

  
	
   

  	
   

  
	
  Section 8.1.

  	
   

  	
  Quarterly
  Financial Statements

  	
   

  
	
  Section 8.2.

  	
   

  	
  Year-End
  Statements

  	
   

  
	
  Section 8.3.

  	
   

  	
  Compliance
  Certificate

  	
   

  
	
  Section 8.4.

  	
   

  	
  Other Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article IX.
  Negative Covenants 

  	
   

  
	
   

  	
   

  
	
  Section 9.1.

  	
   

  	
  Financial
  Covenants

  	
   

  
	
  Section 9.2.

  	
   

  	
  Indebtedness

  	
   

  
	
  Section 9.3.

  	
   

  	
  Certain
  Permitted Investments

  	
   

  
	
  Section 9.4.

  	
   

  	
  Investments
  Generally

  	
   

  
	
  Section 9.5.

  	
   

  	
  Liens;
  Negative Pledges; Other Matters

  	
   

  
	
  Section 9.6.

  	
   

  	
  Restricted
  Payments

  	
   

  
									



 





















 


	
  Section 9.7

  	
   

  	
  Merger,
  Consolidation, Sales of Assets and Other Arrangements

  	
   

  
	
  Section 9.8.

  	
   

  	
  Fiscal Year

  	
   

  
	
  Section 9.9.

  	
   

  	
  Modifications
  to Advisory Agreement and Other Material Contracts

  	
   

  
	
  Section 9.10.

  	
   

  	
  Transactions
  with Affiliates

  	
   

  
	
  Section 9.11.

  	
   

  	
  ERISA Exemptions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article X.  Default

  	
   

  
	
   

  	
   

  
	
  Section 10.1.

  	
   

  	
  Events of Default

  	
   

  
	
  Section 10.2.

  	
   

  	
  Remedies
  Upon Event of Default

  	
   

  
	
  Section 10.3.

  	
   

  	
  Remedies
  Upon Default

  	
   

  
	
  Section 10.4.

  	
   

  	
  Allocation
  of Proceeds

  	
   

  
	
  Section 10.5.

  	
   

  	
  Collateral
  Account

  	
   

  
	
  Section 10.6.

  	
   

  	
  Performance
  by Agent

  	
   

  
	
  Section 10.7.

  	
   

  	
  Rights
  Cumulative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article XI. The Agent

  	
   

  
	
   

  	
   

  
	
  Section 11.1.

  	
   

  	
  Authorization
  and Action

  	
   

  
	
  Section 11.2.

  	
   

  	
  Agent’s
  Reliance, Etc.

  	
   

  
	
  Section 11.3.

  	
   

  	
  Notice of
  Defaults

  	
   

  
	
  Section 11.4.

  	
   

  	
  Wachovia as
  Lender

  	
   

  
	
  Section 11.5.

  	
   

  	
  Approvals of
  Lenders

  	
   

  
	
  Section 11.6.

  	
   

  	
  Lender
  Credit Decision, Etc.

  	
   

  
	
  Section 11.7.

  	
   

  	
  Indemnification
  of Agent

  	
   

  
	
  Section 11.8.

  	
   

  	
  Successor Agent

  	
   

  
	
  Section 11.9.

  	
   

  	
  Titled Agents

  	
   

  
	
   

  	
   

  
	
  Article XII.
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  Section 12.1.

  	
   

  	
  Notices

  	
   

  
	
  Section 12.2.

  	
   

  	
  Expenses

  	
   

  
	
  Section 12.3.

  	
   

  	
  Setoff

  	
   

  
	
  Section 12.4.

  	
   

  	
  Litigation;
  Jurisdiction; Other Matters; Waivers

  	
   

  
	
  Section 12.5.

  	
   

  	
  Successors
  and Assigns

  	
   

  
	
  Section 12.6.

  	
   

  	
  Amendments

  	
   

  
	
  Section 12.7.

  	
   

  	
  Nonliability
  of Agent and Lenders

  	
   

  
	
  Section 12.8.

  	
   

  	
  Confidentiality

  	
   

  
	
  Section 12.9.

  	
   

  	
  Indemnification

  	
   

  
	
  Section 12.10.

  	
   

  	
  Termination;
  Survival

  	
   

  
	
  Section 12.11.

  	
   

  	
  Severability
  of Provisions

  	
   

  
	
  Section 12.12.

  	
   

  	
  GOVERNING LAW

  	
   

  
	
  Section 12.13.

  	
   

  	
  Counterparts

  	
   

  
	
  Section 12.14.

  	
   

  	
  Obligations
  with Respect to Loan Parties

  	
   

  
	
  Section 12.15.

  	
   

  	
  Limitation
  of Liability

  	
   

  
	
  Section 12.16.

  	
   

  	
  Entire Agreement

  	
   

  
	
  Section 12.17.

  	
   

  	
  Construction

  	
   

  
	
  Section 12.18.

  	
   

  	
  Judgment
  Currency

  	
   

  
					



 





















 


	
  Section 12.19.

  	
   

  	
  Patriot Act

  	
   

  
	
  SECTION 12.20.

  	
   

  	
  LIABILITY
  OF TRUSTEES, ETC

  	
   

  
	
  Section 12.21.

  	
   

  	
  NO NOVATION

  	
   

  



 


 


	
  SCHEDULE 1.1(A)

  	
   

  	
  List of Loan
  Parties

  
	
  SCHEDULE 6.1.(b)

  	
   

  	
  Ownership
  Structure

  
	
  SCHEDULE 6.1.(f)

  	
   

  	
  Title to
  Properties; Liens

  
	
  SCHEDULE 6.1.(g)

  	
   

  	
  Indebtedness and
  Guaranties

  
	
  SCHEDULE 6.1.(h)

  	
   

  	
  Material
  Contracts

  
	
  SCHEDULE 6.1.(i)

  	
   

  	
  Litigation

  
	
  SCHEDULE 6.1.(k)

  	
   

  	
  Financial
  Statements

  
	
  SCHEDULE 6.1.(y)

  	
   

  	
  List of
  Unencumbered Assets and Unencumbered Mortgage Notes

  
	
  SCHEDULE 9.4.

  	
   

  	
  Existing
  Investments

  



 


 


	
  EXHIBIT A

  	
   

  	
  Form of
  Alternate Currency Note

  
	
  EXHIBIT B

  	
   

  	
  Form of
  Assignment and Acceptance Agreement

  
	
  EXHIBIT C

  	
   

  	
  Form of Guaranty

  
	
  EXHIBIT D

  	
   

  	
  Form of Notice
  of Alternate Currency Loan

  
	
  EXHIBIT E

  	
   

  	
  Form of Notice
  of Borrowing

  
	
  EXHIBIT F

  	
   

  	
  Form of Notice
  of Continuation

  
	
  EXHIBIT G

  	
   

  	
  Form of Notice
  of Conversion

  
	
  EXHIBIT H

  	
   

  	
  Form of Notice
  of Swingline Borrowing

  
	
  EXHIBIT I

  	
   

  	
  Form of
  Swingline Note

  
	
  EXHIBIT J

  	
   

  	
  Form of
  Revolving Note

  
	
  EXHIBIT K

  	
   

  	
  Form of
  Compliance Certificate

  



 





















 


THIS
AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 25, 2005 by and
among HRPT PROPERTIES TRUST, a real estate investment trust organized under the
laws of the State of Maryland (the “Borrower”), WACHOVIA CAPITAL MARKETS, LLC,
as Sole Arranger (the “Sole Arranger”) and Book Manager (the “Book Manager”),
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Agent”),
each of ROYAL BANK OF CANADA and SUNTRUST BANK, as Syndication Agents (each a “Syndication
Agent”), each of COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH and THE BANK
OF NEW YORK, as Documentation Agents (each a “Documentation Agent”), and each
of the financial institutions initially a signatory hereto together with their
assignees pursuant to Section 12.5.(d).


 


WHEREAS,
certain of the Lenders and other financial institutions have made available to
Borrower a $425,000,000 revolving credit facility on the terms and conditions
contained in that certain Credit Agreement dated as of April 30, 2001 (as
amended and in effect immediately prior to the date hereof, the “Existing
Credit Agreement”) by and among the Borrower, such Lenders, certain other
financial institutions, the Agent and the other parties thereto; and


 


WHEREAS,
the Agent and the Lenders desire to amend and restate the terms of the Existing
Credit Agreement to make available to the Borrower a revolving credit facility
in the initial amount of $750,000,000, which will include a $50,000,000 letter
of credit subfacility and a $50,000,000 swingline subfacility, on the terms and
conditions contained herein;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the parties hereto agree that the Existing Credit Agreement is amended
and restated as follows:


 


ARTICLE I. DEFINITIONS


 


Section 1.1.  Definitions.


 


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


 


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


 


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


 


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


 


“Adjusted LIBOR” means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such
Interest Period by (b) a percentage equal to 1 minus the stated maximum
rate (stated as a decimal) of all reserves, if any, required to be maintained
with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”) as specified in Regulation D of the Board of Governors of
the Federal Reserve


 





















 


System (or against any
other category of liabilities which includes deposits by reference to which the
interest rate on LIBOR Loans is determined or any category of extensions of
credit or other assets which includes loans by an office of any Lender outside
of the United States of America to residents of the United States of America).


 


“Advisory Agreement” means that certain Advisory Agreement
dated as of January 1, 1998 by and between the Borrower and RMR.


 


“Affiliate” means any Person (other than the Agent or any
Lender): (a) directly or indirectly controlling, controlled by, or under
common control with, the Borrower; (b) directly or indirectly owning or
holding ten percent (10.0%) or more of any Equity Interest in the Borrower; or
(c) ten percent (10.0%) or more of whose voting stock or other Equity
Interest is directly or indirectly owned or held by the Borrower.  For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”) means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise.  The Affiliates of a Person
shall include any officer or director of such Person.


 


“Agent” means Wachovia Bank, National Association, as
contractual representative for the Lenders under the terms of this Agreement,
and any of its successors.


 


“Agent’s Correspondent” means Wachovia Bank, National
Association, London Branch, or any other financial institution designated by
the Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternate Currency Loans.


 


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


 


“Alternate
Currency” means, at any time, any of (a) the Euro, (b) the
Pound Sterling and (c) Canadian Dollars, in each case so long as
(i) such Currency is freely transferable and convertible into Dollars and
(ii) no central bank or other governmental authorization in the country of
issue of such Currency is required to permit use of such Currency by any Lender
for making any Loan and/or to permit the Borrower to borrow and repay the
principal thereof and to pay the interest thereon (unless such authorization
has been obtained and is in full force and effect).


 


“Alternate
Currency Commitment” means the obligation of the Alternate Currency
Lender to make Alternate Currency Loans pursuant to Section 2.2. in an
amount up to, but not exceeding at any time of determination, the greater of
(a) the Base Alternate Currency Commitment and (b) 40% of the
aggregate amount of the Commitments at such time.


 


“Alternate
Currency Equivalent” means, with respect to any amount in Dollars,
the amount of any Alternate Currency that could be purchased with such amount
of Dollars using the reciprocal of the foreign exchange rate(s) specified in
the definition of the term “Dollar Equivalent”, as determined by the Agent or
the Agent’s Correspondent.


 





















 


“Alternate
Currency Lender” means Wachovia, in its capacity as alternate
currency lender hereunder.


 


“Alternate
Currency Loan” means LIBOR Loans made by the Alternate Currency
Lender denominated in an Alternate Currency.


 


“Alternate Currency
Note” means the promissory note of the Borrower payable to the order
of the Alternate Currency Lender substantially in the form of Exhibit A.


 


“Alternate
Currency Termination Date” means January 23, 2006, or such
later date to which the Alternate Currency Termination Date may be extended
pursuant to Section 2.13.(b), or such earlier date on which the Alternate
Currency Commitment is terminated pursuant to Section 10.2. or otherwise.


 


“Applicable Law” means all applicable provisions of
constitutions, statutes, laws, rules, regulations and orders of all
governmental bodies and all orders and decrees of all courts, tribunals and
arbitrators.


 


“Applicable Margin” means the percentage per annum
determined, at any time, based on the range into which the Borrower’s Credit
Rating then falls, in accordance with the table set forth below.  Any change in the Borrower’s Credit Rating
which would cause it to move to a different Level in such table shall effect a
change in the Applicable Margin on the Business Day on which such change
occurs.  During any period that the
Borrower has received Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the lower of such two Credit Ratings.  During any period for which the Borrower has
not received a Credit Rating from either Rating Agency, then the Applicable
Margin shall be determined as Level 5. 
As of the Agreement Date, the Applicable Margin is determined based on
Level 3.


 


	
  Level

  	
   

  	
  Borrower’s Credit Rating

  (S&P/Moody’s (other))

  	
   

  	
  Applicable Margin

  for LIBOR Loans

  	
   

  	
  Applicable Margin

  for Base Rate Loans

  	
   

  
	
  1

  	
   

  	
  A-/A3 (or
  equivalent)

  	
   

  	
  0.50

  	
  %

  	
  0.0

  	
  %

  
	
  2

  	
   

  	
  BBB+/Baa1 (or
  equivalent)

  	
   

  	
  0.55

  	
  %

  	
  0.0

  	
  %

  
	
  3

  	
   

  	
  BBB/Baa2 (or
  equivalent)

  	
   

  	
  0.65

  	
  %

  	
  0.0

  	
  %

  
	
  4

  	
   

  	
  BBB-/Baa3 (or
  equivalent)

  	
   

  	
  0.80

  	
  %

  	
  0.0

  	
  %

  
	
  5

  	
   

  	
  <  BBB-/Baa3 (or equivalent)

  	
   

  	
  1.20

  	
  %

  	
  0.25

  	
  %

  



 


“Approved Fund” means any Person (other than
a natural Person) (a) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (b) that is administered
or managed by a Lender, an affiliate of a Lender or an entity or an affiliate
of an entity that administers or manages a Lender.


 


“Asset Under Development” means, as of any date of
determination, any Property owned by the Borrower or any of its Subsidiaries on
which the construction of new income-producing improvements has been commenced
and is continuing, with both the land and the improvements under construction
thereon which comprise such Property to be valued at then-


 





















 


current book value, as
determined in accordance with GAAP.  In
the event of construction of an addition or expansion to an existing income
producing Property, only the addition or expansion shall be considered an Asset
Under Development.


 


“Assignee” has the meaning given that term in Section 12.5.(d).


 


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


 


“Base
Alternate Currency Commitment” means $300,000,000 as such amount may
be reduced in accordance with the terms of this Agreement.


 


“Base Rate” means the per annum rate of interest equal to the
greater of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half
of one percent (0.5%). Any change in the Base Rate resulting from a change in
the Prime Rate or the Federal Funds Rate shall become effective as of 12:01
a.m. on the Business Day on which each such change occurs.  The Base Rate is a reference rate used by the
Lender acting as the Agent in determining interest rates on certain loans and
is not intended to be the lowest rate of interest charged by the Lender acting
as the Agent or any other Lender on any extension of credit to any debtor.


 


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


 


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


 


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


 


“Business Day” means (a) any day other than a Saturday,
Sunday or other day on which banks in Charlotte, North Carolina or New York,
New York are authorized or required to close and (b) with reference to a
LIBOR Loan, any such day (i) that is also a day on which dealings in
deposits of the applicable Currency are carried out in the London interbank
market and (ii) on which banks are open for the conduct of their domestic
and international business in the place where the Lender acting as the Agent or
the Agent’s Correspondent shall make available Loans in such Currency.


 


“Canadian Dollars” or “CA$” means the official currency of
Canada.


 


“Capital Expenditure Reserves” means, with respect to: (a) an
Office Property and for a given period, an amount equal to (i) the
aggregate rentable square footage of all completed space of such Office
Property, times (ii) $0.50, times (iii) the number of
days in such period, divided by (iv) 365; and (b) an Industrial
Property and for a given period, an amount equal to (i) the aggregate rentable
square footage of all completed space of such Industrial Property, times
(ii) $0.10, times (iii) the number of days in such period, divided
by (iv) 365; provided, however that


 





















 


no Capital Expenditure
Reserves shall be required with respect to any portion of an Office Property or
an Industrial Property which is net leased to a third party.


 


“Capitalization Rate” means (a) 8.00%
with respect to any Properties located in Hawaii and leased under long-term
ground leases, and (b) 8.75% in all other cases.


 


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


 


“Cash Equivalents” means: (a) securities issued,
guaranteed or insured by the United States of America or any of its agencies
with maturities of not more than one year from the date acquired;
(b) certificates of deposit with maturities of not more than one year from
the date acquired issued by a United States federal or state chartered
commercial bank of recognized standing, or a commercial bank organized under
the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, acting through a branch or agency, which bank at the time of the
acquisition thereof has capital and unimpaired surplus in excess of
$500,000,000.00 and which bank or its holding company has a short-term
commercial paper rating of at least A-2 or the equivalent by S&P or at
least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements
with terms of not more than seven days from the date acquired, for securities
of the type described in clause (a) above and entered into only with
commercial banks having the qualifications described in clause (b) above;
(d) commercial paper issued by any Person incorporated under the laws of
the United States of America or any State thereof and rated at the time of the
acquisition thereof at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Moody’s, in each case with maturities of
not more than one year from the date acquired; and (e) investments in
money market funds registered under the Investment Company Act of 1940, which
have at the time of the acquisition thereof net assets of at least
$500,000,000.00 and at least 85% of whose assets consist of securities and
other obligations of the type described in clauses (a) through (d) above.


 


“Collateral Account” means a special non-interest bearing
deposit account or securities account maintained by, or on behalf of, the Agent
at the Principal Office and under its sole dominion and control.


 


“Commitment” means, as to each Lender (other than the
Swingline Lender and the Alternate Currency Lender), such Lender’s obligation
(a) to make Revolving Loans pursuant to Section 2.1., (b) to issue (in the case
of the Lender then acting as the Agent) or participate in (in the case of the
other Lenders) Letters of Credit pursuant to Section 2.4(a) and 2.4.(i), respectively (but in the case
of the Lender acting as the Agent excluding the aggregate amount of
participations in the Letters of Credit held by the other Lenders), (c) to
participate in Swingline Loans pursuant to Section 2.3.(e), and
(d) to participate in Alternate Currency Loans pursuant to Section 2.2.(d),
in each case, in an amount up to, but not exceeding, the amount set forth for
such Lender on its signature page hereto as such Lender’s “Commitment Amount”
or as set forth in


 





















 


the applicable Assignment
and Acceptance Agreement, as the same may be reduced from time to time pursuant
to Section 2.12. or as
appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5.


 


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


 


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


 


“Continue”, “Continuation”
and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest
Period pursuant to Section 2.9.


 


“Convert”, “Conversion” and
“Converted” each refers to the
conversion of a Revolving Loan of one Type into a Revolving Loan of another
Type pursuant to Section 2.10.


 


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


 


“Credit Rating” means, with respect to a Person, the lowest
rating assigned by a Rating Agency to each series of rated senior unsecured
long term indebtedness of such Person.


 


“Currency” means Dollars or any Alternate Currency.


 


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


 


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


 


“Defaulting Lender” has the meaning set forth in Section 3.11.


 


“Derivatives Contract” means any “swap agreement” as
defined in 11 U.S.C. § 101.


 


“Derivatives Termination
Value” means, in
respect of any one or more Derivatives Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, the termination value(s) thereof determined in
accordance with GAAP.


 





















 


“Developable Property” means (a) any Property on which
there are no improvements (excluding land which is leased under a net lease to
a third party) or (b) any Property (or portion thereof) acquired by the
Borrower or any Subsidiary for the purpose of being developed by the Borrower
or any Subsidiary.


 


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


 


“Dollar
Equivalent” means with respect to any monetary amount in an
Alternate Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Alternate Currency involved in such
computation into Dollars calculated on the basis of the most favorable spot
exchange rate determined by the Agent or the Agent’s Correspondent for the
purchase of Dollars with the applicable Alternate Currency at the relevant time
on the date of determination thereof specified herein or, if the date of
determination thereof is not otherwise specified herein, on the date two
Business Days prior to such determination.


 


“EBITDA” means, with respect to a Person for a given period:
(a) net income (or loss) of such Person for such period determined on a
consolidated basis exclusive of the following (to the extent included in
determination of such net income (loss)): (i) depreciation and
amortization; (ii) interest expense; (iii) income tax expense;
(iv) extraordinary or non-recurring items and extraordinary or
non-recurring gains and losses; and (v) in the case of the Borrower and
its Subsidiaries, equity in the earnings (or loss) of SNH and HPT and other
Unconsolidated Affiliates; plus (b) in the case of the Borrower and
its Subsidiaries cash dividends (other than extraordinary cash dividends or
distributions) received by the Borrower or its Subsidiaries from SNH or HPT
during such period; plus (c) such Person’s pro rata share of EBITDA
of its Unconsolidated Affiliates. 
Straight line rent leveling adjustments required under GAAP, and
amortization of intangibles pursuant to Statement of Financial Accounting
Standards number 141 and the like, shall be disregarded in determinations of
EBITDA (to the extent such adjustments would otherwise have been included in
the determination of EBITDA).


 


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


 


“Eligible Assignee” means any Person who is,
at the time of determination: (i) a Lender; (ii) an affiliate of a
Lender; (iii) an Approved Fund; (iv) a commercial bank, trust
company, insurance company, investment bank, pension fund organized under the
laws of the United States of America, or any state thereof; (v) a savings
and loan association or savings bank organized under the laws of the United
States of America, or any state thereof; (vi) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, provided that such bank is acting through a branch or agency located
in the United States of America; (vii) so long as no Event of Default
exists, and subject to the prior consent of the Agent and the Borrower (which
consent, in each case, shall not be unreasonably withheld), any other Person
that is not an individual. 
Notwithstanding the foregoing, during any period in which an Event of
Default shall have occurred and be continuing under any of
subsections (a), (b), (f) or (g) of Section 10.1., the term “Eligible
Assignee” shall mean any Person that is not an individual.


 





















 


“EMU”
means economic and monetary union as contemplated in the Treaty on European
Union.


 


“EMU
Legislation” means legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified European
currency (whether known as the euro or otherwise).


 


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


 


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


 


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


 


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


 


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


 


“Euro” or “€” means the single currency of Participating
Member States of the European Union.


 





















 


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


 


“Excluded Subsidiary” means any Subsidiary (a) which has
a legal structure and capitalization intended to make such entity a single
purpose, “bankruptcy remote” entity; and (b) for which none of the
Borrower, any Subsidiary (other than another Excluded Subsidiary) or any other
Loan Party has Guaranteed any of the Indebtedness or Subordinated Debt of such
Subsidiary or has any direct obligation to maintain or preserve such Subsidiary’s
financial condition or to cause such Subsidiary to achieve any specified levels
of operating results, except for customary
exceptions for fraud, misapplication of funds, environmental indemnities, and
other similar exceptions to recourse liability.


 


“Excluded
Taxes” means, with respect to the Agent, any Lender or any other recipient
of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its assets, net income
(however denominated) or receipts, and franchise taxes imposed on it by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which such Lender is
located and (c) in the case of a Foreign Lender (other than an Assignee
pursuant to a request by the Borrower under Section 4.5.), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or
is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Regulatory Change) to comply with Section 3.12.(c), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.12. (a).


 


“Existing Credit Agreement” has the meaning given such term
in the first “WHEREAS” clause of this Agreement.


 


“Extension Request” has the meaning given that term in Section 2.13.


 


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


 




	
  Level

  	
   

  	
  Facility Fee

  	
   

  
	
  1

  	
   

  	
  0.15%

  	
   

  
	
  2

  	
   

  	
  0.15%

  	
   

  
	
  3

  	
   

  	
  0.20%

  	
   

  
	
  4

  	
   

  	
  0.20%

  	
   

  
	
  5

  	
   

  	
  0.25%

  	
   

  






 


As of the Agreement Date, the Facility Fee equals 0.20%.


 





















 


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


 


“Federal Funds Rate” means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) 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, 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
quoted to the Agent by federal funds dealers selected by the Agent on such day
on such transaction as determined by the Agent.


 


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


 


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


 


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


 


“Floating Rate Debt” means all Indebtedness of the Borrower
and its Subsidiaries which bears interest at fluctuating rates (and in any
event shall include all Loans and other Indebtedness of the Borrower under any
of the Loan Documents) and for which the Borrower or any such Subsidiary has
not obtained Interest Rate Agreements which effectively cause such variable
rates to be equivalent to fixed rates less than or equal to (a) the rate (as
reasonably determined by the Agent) borne by United States 10-year Treasury
Notes at the time the applicable Interest Rate Agreement became effective plus
(b) 3.0% per annum.


 


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


 


“Funds From Operations” means, for any period, net income
available for common shareholders of the Borrower for such period determined on
a consolidated basis, exclusive of the following (to the extent included in the
determination of such net income): (a) depreciation and amortization; (b) gains
and losses from extraordinary or non-recurring items; (c) gains and losses on
sales of real estate; (d) gains and losses on investments in marketable
securities; (e) provisions/benefits for income taxes for such period; and
(f) Funds From Operations attributable to any Investment held, directly or
indirectly, by the Borrower in HPT and SNH; provided, however,
cash dividends in respect of such Investments in HPT and SNH that have been
actually


 





















 


received by the Borrower
or any Subsidiary during such period, shall not be excluded from Funds From
Operations by virtue of this clause (f).


 


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


 


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


 


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


 


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


 


“Guaranty”, “Guaranteed” or
to “Guarantee” as applied to any obligation
means and includes:  (a) a guaranty
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in any manner, of any
part or all of such obligation, or (b) an agreement, direct or indirect,
contingent or otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or performance (or payment
of damages in the event of nonperformance) of any part or all of such
obligation whether by: (i) the purchase of securities or obligations,
(ii) the purchase, sale or lease (as lessee or lessor) of property or the
purchase or sale of services primarily for the purpose of enabling the obligor
with respect to such obligation to make any payment or performance (or payment
of damages in the event of nonperformance) of or on account of any part or all
of such obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn
down by beneficiaries of letters of credit (including Letters of Credit), or
(v) the supplying of funds to or investing in a Person on account of all
or any part of such Person’s obligation under a Guaranty of any obligation or
indemnifying or holding harmless, in any way, such Person against any part or
all of such obligation.  As the context
requires, “Guaranty” shall also mean the Guaranty to which the Guarantors are
parties substantially in the form of Exhibit C.


 


“Hazardous Materials” means all or any of the following:
(a) substances that are defined or listed in, or otherwise classified
pursuant to, any applicable Environmental Laws as “hazardous substances”, “hazardous
materials”, “hazardous wastes”, “toxic substances” or any other formulation
intended to define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
reproductive toxicity,


 





















 


“TCLP” toxicity or “EP
toxicity”; (b) oil, petroleum or petroleum derived substances, natural
gas, natural gas liquids or synthetic gas and drilling fluids, produced waters
and other wastes associated with the exploration, development or production of
crude oil, natural gas or geothermal resources; (c) any flammable
substances or explosives or any radioactive materials; (d) asbestos in any
form; (e) toxic mold; and (f) electrical equipment which contains any
oil or dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty parts per million.


 


“HPT” means Hospitality Properties Trust, together with its
successors and assigns.


 


“Indebtedness” means, with respect to a Person, at the time
of computation thereof, all of the following (without duplication):
(a) all obligations of such Person in respect of money borrowed;
(b) all obligations of such Person, whether or not for money borrowed
(i) represented by notes payable, or drafts accepted, in each case
representing extensions of credit, (ii) evidenced by bonds, debentures,
notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property or services
rendered; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment);
(e) all obligations, contingent or otherwise, of such Person under any
synthetic lease, tax retention operating lease, off balance sheet loan or
similar off balance sheet financing arrangement if the transaction giving rise
to such obligation (i) is considered indebtedness for borrowed money for
tax purposes but is classified as an operating lease under GAAP and
(ii) does not (and is not required to pursuant to GAAP) appear as a
liability on the balance sheet of such Person; (f) all obligations of such
Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any Mandatorily Redeemable Stock issued by such Person or any other
Person, valued at the greater of its voluntary or involuntary liquidation
preference; (g) all obligations of such Person in respect of any take-out
commitment or forward equity commitment (excluding, in the case of the Borrower
and its Subsidiaries, any such obligation that can be satisfied solely by the
issuance of Equity Interests (other than Mandatorily Redeemable Stock));
(h) all Indebtedness of other Persons which such Person has Guaranteed or
is otherwise recourse to such Person; (i) all Indebtedness of another
Person secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien (other than
Permitted Liens of the types described in clauses (a) through (c) or (e)
through (i) of the definition thereof) on property or assets owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness or other payment obligation, valued, in the case
of any such Indebtedness as to which recourse for the payment thereof is
expressly limited to the property or assets on which such Lien is granted, at
the lesser of (x) the stated or determinable amount of the Indebtedness that is
so secured or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) and (y) the Fair Market Value of such property or assets;
and (j) such Person’s pro rata share of the Indebtedness of any
Unconsolidated Affiliate of such Person. 
In the case of the Borrower and its Subsidiaries, Subordinated Debt
shall not be considered Indebtedness.


 


“Industrial Property” means a Property improved with, and
from which 80% of the rental income is derived from the use of such Property
as, industrial or warehouse space.


 





















 


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


 


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


 


“Interest Period” means with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or the last day of the
next preceding Interest Period for such Loan and ending 7 days or 1, 3, 6 or,
if available from all Lenders, 12 months thereafter, as the Borrower may select
in a Notice of Borrowing, Notice of Alternate Currency Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period of 1, 3, 6 or 12 months duration that commences on the last
Business Day of a calendar month shall end on the last Business Day of the
appropriate subsequent calendar month. 
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise end (x) after the Termination Date, such Interest Period shall
end on the Termination Date and (y) in the case of an Alternate Currency Loan,
after the Alternate Currency Termination Date, such Interest Period shall end
on the Alternate Currency Termination Date; and (ii) each Interest Period
that would otherwise end on a day which is not a Business Day shall end on the
immediately following Business Day (or in the case of any Interest Period other
than one having a duration of 7 days, if such immediately following Business
Day falls in the next calendar month, on the immediately preceding Business
Day).


 


“Interest Rate Agreement” means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar contractual agreement or arrangement entered into with a nationally
recognized financial institution then having an Investment Grade Rating for the
purpose of protecting against fluctuations in interest rates.


 


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


 


“Investment” means, (x) with respect to any Person, any
acquisition or investment (whether or not of a controlling interest) by such
Person, by means of any of the following: 
(a) the purchase or other acquisition of any Equity Interest in
another Person, (b) a loan, advance or extension of credit to, capital
contribution to, Guaranty of Indebtedness of, or purchase or other acquisition
of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute the business or a division or operating unit of another Person
and (y) with respect to any Property or other asset, the acquisition
thereof.  Any commitment to make an
Investment in any other Person, as well as any option of another Person to
require an Investment in such Person, shall constitute an Investment.  Except as expressly provided otherwise, for
purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount





















 


actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.


 


“Investment Grade Rating” means a Credit Rating of BBB-/Baa3
(or equivalent) or higher from both Rating Agencies.


 


“L/C Commitment Amount” equals $50,000,000.


 


“Lender”
means each financial institution from time to time party hereto as a “Lender”,
together with its respective successors and permitted assigns (including
without limitation, the Swingline Lender and the Alternate Currency Lender
unless the context otherwise requires).


 


“Lending Office” means, for each Lender and for each Type of
Loan, the office of such Lender specified as such on its signature page hereto
or in the applicable Assignment and Acceptance Agreement, or such other office
of such Lender as such Lender may notify the Agent and the Borrower in writing
from time to time.


 


“Letter of Credit” has the meaning given that term in Section 2.4.(a).


 


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


 


“Letter of Credit Liabilities” means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of the Borrower at such time due and payable
in respect of all drawings made under such Letter of Credit.  For purposes of this Agreement, a Lender
(other than the Lender acting as the Agent) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the
related Letter of Credit under Section 2.4.(i), and the Lender acting as
the Agent shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after giving
effect to the acquisition by the Lenders other than the Lender acting as the
Agent of their participation interests under such Section.


 


“LIBOR” means, for any LIBOR Loan in any Currency for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in such Currency at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period.  If for any reason such rate is not available,
the term “LIBOR” shall mean, for any LIBOR Loan in any Currency for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the
London interbank offered rate for deposits in such Currency at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;


 





















 


provided, however, if
more than one rate is specified on the Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates.  If for any reason none of the foregoing rates
is available, LIBOR shall be, for any Interest Period and any Currency, the
rate per annum reasonably determined by the Agent as the rate of interest at
which deposits in such Currency in the approximate amount of the LIBOR Loan
comprising part of such borrowing would be offered by the Lender acting as the
Agent (or the Agent’s Correspondent) to major banks in the London interbank
market at their request at or about 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period.


 


“LIBOR Loans” means (a) Revolving Loans bearing interest
at a rate based on LIBOR and (b) Alternate Currency Loans.


 


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


 


“Loan” means a Revolving Loan, a Swingline Loan or an
Alternate Currency Loan.


 


“Loan Document” means this Agreement, each Note, each Letter
of Credit Document, the Guaranty and each other document or instrument now or
hereafter executed and delivered by a Loan Party in connection with, pursuant
to or relating to this Agreement.


 


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


 


“Management Agreement” means that certain Master Management
Agreement dated as of December 31, 1997                                       by and between
RMR and the Borrower and its Subsidiaries.


 


“Mandatory Cost” means the cost to the Alternate Currency
Lender of complying with all reserve, special deposit, capital adequacy,
solvency, liquidity ratios, fees or other requirements of or imposed by the
Bank of England, the Financial Services Authority, the


 





















 


European Central Bank or
any other Governmental Authority attributable to each Alternate Currency Loan
or any unpaid sum (rounded up if necessary to 4 decimal places) as determined
by the Alternate Currency Lender.


 


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


 


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


 


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


 


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


 


“Material Plan” means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.


 


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


 


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


 


“Multiemployer Plan” means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan


 





















 


years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.


 


“Negative Pledge” means a provision of any agreement (other
than this Agreement or any other Loan Document) that prohibits or limits the
creation or assumption of any Lien on any assets of a Person or entitles
another Person to obtain or claim the benefit of a Lien on any assets of such
Person; 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 Operating Income” means, with respect to a Property and
for a given period, the sum of the following (without duplication):
(a) rents (adjusted for straight-lining of rents and amortization of
intangibles pursuant to Statement of Financial Accounting Standards number 141
and the like) and other revenues received in the ordinary course from the
leasing or operating of such Property (including proceeds of rent loss
insurance but excluding pre-paid rents and revenues and security deposits
except to the extent applied in satisfaction of tenants’ obligations for rent) minus
(b) all expenses paid or accrued by the Borrower or a Subsidiary related
to the ownership, operation or maintenance of such Property, including but not
limited to taxes, assessments and other similar charges, insurance, utilities,
payroll costs, maintenance, repair and landscaping expenses, on-site marketing
expenses and property management fees equal to the greater of (i) actual
property management fees or (ii) three percent (3.0%) of the total gross
revenues for such Property for such period, but in any event excluding general
and administrative expenses of the Borrower and its Subsidiaries, minus
(c) Capital Expenditures Reserves with respect to such Property for such
period.


 


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


 


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


 


“Non-Domestic Property” means a Property located outside a
state of the United States of America and the District of Columbia.


 


“Nonrecourse Indebtedness” means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment
(except for customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other similar
exceptions to


 





















 


recourse
liability) is contractually limited to specific assets of such Person
encumbered by a Lien securing such Indebtedness.


 


“Note” means a Revolving Note, the Swingline Note or the
Alternate Currency Note.


 


“Notice of Alternate Currency Borrowing” means a notice in
the form of Exhibit D to be delivered to the Agent pursuant to Section 2.2.(a)
evidencing the Borrower’s request for an Alternate Currency Loan.


 


“Notice of Borrowing” means a notice in the form of
Exhibit E to be delivered to the Agent pursuant to Section 2.1.(b)
evidencing the Borrower’s request for a borrowing of Revolving Loans.


 


“Notice of Continuation” means a notice in the form of
Exhibit F to be delivered to the Agent pursuant to Section 2.9.
evidencing the Borrower’s request for the Continuation of a LIBOR Loan.


 


“Notice of Conversion” means a notice in the form of
Exhibit G to be delivered to the Agent pursuant to Section 2.10.
evidencing the Borrower’s request for the Conversion of a Loan from one Type to
another Type.


 


“Notice of Swingline Borrowing” means a notice in the form of
Exhibit H to be delivered to the Agent pursuant to Section 2.3.(b)
evidencing the Borrower’s request for a Swingline Loan.


 


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


 


“Office
Property” means a Property improved with, and from which 80%
of the rental income is derived from the use of such Property as, office space.


 


“Participant” has the meaning given that term in Section 12.5.(c).


 


“Participating Member State” means each state so described in
any EMU Legislation.


 


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


 


“Permitted Liens” means, as to any Person: (a) Liens
securing taxes, assessments and other charges or levies imposed by any
Governmental Authority (excluding any Lien imposed pursuant to any of the
provisions of ERISA) or the claims of materialmen, mechanics, carriers,


 





















 


warehousemen or landlords
for labor, materials, supplies or rentals incurred in the ordinary course of
business, (i) which are not at the time required to be paid or discharged
under Section 7.6. or (ii) if such Lien is the responsibility of a
financially responsible tenant, mortgagor or manager to discharge;
(b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under
workers’ compensation, unemployment insurance or similar Applicable Laws;
(c) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person and, in the case of the Borrower or
any Subsidiary, Liens granted by any tenant on its leasehold estate in a
Property which are subordinate to the interest of the Borrower or a Subsidiary
in such Property; (d) Liens in existence as of the Agreement Date and set
forth in Part II of Schedule 6.1.(f); (e) deposits to secure trade
contracts (other than for Indebtedness), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (f) the lessor’s interest in property
leased to the Borrower or any of its Subsidiaries pursuant to a lease permitted
by this Agreement; (g) the interests of tenants, operators or managers of
Properties; (h) Liens in favor of the Agent for the benefit of the
Lenders; and (i) Liens which are also secured by restricted cash or Cash
Equivalents of equal or greater value.


 


“Person” means an individual, corporation, partnership,
limited liability company, association, trust or unincorporated organization,
or a government or any agency or political subdivision thereof.


 


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


 


“Pound Sterling” or “£” means the official currency of the
United Kingdom of Great Britain and Northern Ireland.


 


“Post-Default Rate” means, in respect of any principal of any
Loan or any other Obligation that is not paid when due (whether at stated
maturity, by acceleration, by optional or mandatory prepayment or otherwise), a
rate per annum equal to four percent (4.0%) plus the Base Rate as in effect
from time to time.


 


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


 





















 


in the redemption of
Preferred Stock, other than scheduled redemptions not constituting balloon,
bullet or similar redemptions in full.


 


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


 


“Prime Rate” means the rate of interest per annum announced
publicly by the Lender acting as the Agent as its prime rate from time to
time.  The Prime Rate is not necessarily
the best or the lowest rate of interest offered by the Lender acting as the
Agent or any other Lender.


 


“Principal
Office” means the office of the Agent located at One Wachovia
Center, Charlotte, North Carolina, or such other office of the Agent as the
Agent may designate from time to time.


 


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


 


“Property EBITDA” means, with respect to a Property and for a
given period, the sum of the following (without duplication): (a) rents
(adjusted for straight-lining of rents and amortization of intangibles pursuant
to Statement of Financial Accounting Standards number 141 and the like) and
other revenues received in the ordinary course from the leasing or operating of
such Property (including proceeds of rent loss insurance but excluding pre-paid
rents and revenues and security deposits except to the extent applied in
satisfaction of tenants’ obligations for rent) minus (b) all
expenses paid or accrued by the Borrower or a Subsidiary related to the
ownership, operation or maintenance of such Property, including but not limited
to taxes, assessments and other similar charges, insurance, utilities, payroll
costs, maintenance, repair and landscaping expenses, on-site marketing expenses
and property management fees equal to the greater of (i) actual property
management fees or (ii) three percent (3.0%) of the total gross revenues
for such Property for such period, but in any event excluding general and
administrative expenses of the Borrower and its Subsidiaries.


 


“Rating Agency” means S&P and Moody’s.  If either such corporation ceases to act as a
securities rating agency or ceases to provide ratings with respect to the
senior long-term unsecured debt obligations of the Borrower, then the Borrower
may designate as a replacement Rating Agency Fitch or any other nationally recognized
securities rating agency acceptable to the Agent.


 


“Refunding Event” means (a) the occurrence of a Default
or Event of Default or (b) the suspension of the obligation of the
Alternate Currency Lender to make or Continue Alternate Currency Loans pursuant
to Section 4.1.(b), 4.2. or 4.3.


 


“Register” has the meaning given that term in Section 12.5.(e).


 


“Regulatory Change” means, with respect to any Lender, any
change effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of


 





















 


Governors of the Federal
Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including
such Lender, of or under any Applicable Law (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
Governmental Authority or monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request or directive
regarding capital adequacy.


 


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


 


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


 


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


 


“Requisite Lenders” means, as of any date, Lenders having at
least 66 2/3% of the aggregate amount of the Commitments (excluding Defaulting
Lenders who, accordingly, are not entitled to vote), or if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66 2/3% of the
principal amount of the Loans and Letter of Credit Liabilities (excluding
Defaulting Lenders who, accordingly, are not entitled to vote).  For purposes of this definition, a Lender
(other than the Swingline Lender and the Alternate Currency Lender) shall be
deemed to hold a Swingline Loan, an Alternate Currency Loan or a Letter of
Credit Liability to the extent such Lender has acquired a participation therein
under the terms of this Agreement and has not failed to perform its obligations
in respect of such participation.


 


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


 


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


 


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


 


“Revolving Note” has the meaning given that term in Section 2.11.(a).


 





















 


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


 


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


 


“SNH” means Senior Housing Properties Trust, together with
its successors and assigns.


 


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


 


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


 


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


 


“Subordinated Debt” means Indebtedness of the Borrower or any
of its Subsidiaries that is subordinated in right of payment and otherwise to
the Loans and the other Obligations on terms and conditions approved of by the
Agent and the Requisite Lenders.  When
the Borrower is seeking approval of subordination terms and conditions pursuant
to the immediately preceding sentence, it shall deliver to the Agent a
reasonably detailed description of such terms and conditions which must contain
a conspicuous legend to the effect that a Lender will be deemed to have
approved such terms if it does not respond in writing to the contrary within
the prescribed time.  Promptly upon
receipt of any such notice, the Agent will forward it to each of the
Lenders.  Unless a Lender shall give
written notice to the Agent that it specifically objects to such terms and
conditions within 10 Business Days after receipt of such description from
the Agent, such Lender shall be deemed to have approved of such terms and
conditions.


 


“Subsidiary” means, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (without regard to
the occurrence of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more


 





















 


Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person, and shall
include all Persons the accounts of which consolidated with those of such
Person pursuant to GAAP.


 


“Swingline Commitment” means the Swingline Lender’s
obligation to make Swingline Loans pursuant to Section 2.3. in an amount
up to, but not exceeding, $50,000,000, as such amount may be reduced from time
to time in accordance with the terms hereof.


 


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


 


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


 


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


 


“Tangible Net Worth” means, as of any given time:
(a) the unallocated gross book value (exclusive of depreciation and
amortization) of all real estate assets of the Borrower and its Subsidiaries
that constitute Properties at such time; plus (b) the book value of
other assets (excluding any real estate assets) of the Borrower and its
Subsidiaries; less (c) the book value of the Borrower’s Investment
in HPT and SNH; less (d) all amounts appearing on the assets side
of a consolidated balance sheet of the Borrower for assets separately
classified as intangible assets under GAAP (except for allocations of property
purchase prices pursuant to Statement of Financial Accounting Standards number
141 and the like); less (e) all Indebtedness of the Borrower and
its Subsidiaries determined on a consolidated basis; less (f) all
other liabilities of the Borrower and its Subsidiaries determined on a
consolidated basis (except liabilities resulting from allocations of property
purchase prices pursuant to Statement of Financial Accounting Standards number
141 and the like).


 


“Taxes” means any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges of any nature whatsoever imposed by any Governmental Authority,
other than Excluded Taxes.


 


“Termination Date” means April 28, 2009, or such later
date to which the Termination Date may be extended pursuant to Section 2.13.(a),
or such earlier date on which the Commitments are terminated pursuant to Section 2.12.,
10.2. or otherwise.


 


“Titled Agents” means the Sole Arranger, the Book Manager,
the Syndication Agents and the Documentation Agents, and their respective
successors and permitted assigns.


 


“Total Asset Value” means the sum of the following (without
duplication) of the Borrower and its Subsidiaries for the fiscal quarter most
recently ended: (a)(i)(x) Property EBITDA determined on a consolidated
basis for such fiscal quarter and which is attributable to the Properties of
the Borrower and its Subsidiaries (excluding Property EBITDA attributable to
Properties either acquired or disposed of during such fiscal quarter) minus
(y) Capital


 





















 


Expenditure Reserves for
such Properties for such fiscal quarter times (ii) 4 and divided by
(iii) the applicable Capitalization Rate; (b) the purchase price paid
for any Property acquired during such fiscal quarter (less any amounts paid as
a purchase price adjustment, held in escrow, retained as a contingency reserve,
or other similar arrangements and prior to allocations of property purchase
prices pursuant to Statement of Financial Accounting Standards number 141 and
the like); (c) the value of the Borrower’s equity Investment in each of
HPT and SNH, such value determined at the lower of cost or Fair Market Value;
(d) all Marketable Securities, cash and cash equivalents;
(e) accounts receivable that are not (i) owing in excess of 90 days
(or one year in the case of any Governmental Authority of the United States of
America (but not political subdivisions thereof)) as of the end of such fiscal
quarter or (ii) being contested in writing by the obligor in respect
thereof (in which case only such portion being contested shall be excluded from
Total Asset Value); (f) prepaid taxes and operating expenses as of the end
of such fiscal quarter; (g) the book value of all Developable Property;
(h) the book value of all other tangible assets (excluding land or other
real property) as of the end of such fiscal quarter; (i) the book value of
all Unencumbered Mortgage Notes; and (j) the Borrower’s pro rata share of
the preceding items (other than those referred to in clause (c)) of any
Unconsolidated Affiliate of the Borrower.


 


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


 


“Treaty on
European Union” means the Treaty of Rome of March 25, 1957, as
amended by the Single European Act of 1986, the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), and the Amsterdam Treaty of 1998, and as further amended from time to
time.


 


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


 


“Unconsolidated Affiliate” means, with respect to any Person,
any other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP
with the financial results of such Person on the consolidated financial
statements of such Person.  For purposes
of this definition, Unconsolidated Affiliate shall not include SNH and HPT.


 


“Unencumbered Asset” means a Property which satisfies all of
the following requirements: (a) such Property is (i) owned in fee
simple solely by the Borrower or a Guarantor or (ii) leased solely by the
Borrower or a Guarantor pursuant to a ground lease having terms and


 





















 


conditions reasonably
acceptable to the Agent; (b) such Property is not an Asset Under
Development and is in service; (c) such Property is used for office or
industrial uses, or any other use incidental thereto, as currently in use at
the Properties; (d) neither such Property, nor any interest of the
Borrower or such Guarantor therein, is subject to any Lien (other than
Permitted Liens of the types described in clauses (a) through (c) or (e)
through (i) of the definition thereof or Liens in favor of the Borrower or a
Guarantor) or to any Negative Pledge; (e) if such Property is owned by a
Subsidiary, (i) none of the Borrower’s direct or indirect ownership
interest in such Subsidiary is subject to any Lien (other than Permitted Liens
of the types described in clauses (a) through (c) or (e) through (i) of
the definition thereof or Liens in favor of the Borrower or a Guarantor) or to
any Negative Pledge and (ii) the Borrower directly, or indirectly through
a Subsidiary, has the right to sell, transfer or otherwise dispose of such
Property without the need to obtain the consent of any Person; and
(f) such Property is free of all structural defects or major architectural
deficiencies, title defects, environmental conditions or other adverse matters
which, individually or collectively, materially impair the value of such
Property.


 


“Unencumbered Asset Value” means, at any given time, the sum
of: (a)(i) Unencumbered Net Operating Income from all Unencumbered Assets
for the fiscal quarter most recently ending times (ii) 4 divided
by (iii) the applicable Capitalization Rate; and (b) the book
value of all Unencumbered Mortgage Notes of the Borrower and its Subsidiaries
(excluding any Unencumbered Mortgage Note secured by a Non-Domestic Property).  To the extent that the book value of
Unencumbered Mortgage Notes would account for more than 10.0% of Unencumbered
Asset Value, such excess shall be excluded. 
To the extent that Properties leased by the Borrower or a Guarantor
pursuant to a ground lease would, in the aggregate, account for more than 5.0%
of Unencumbered Asset Value, such excess shall be excluded.  Pro forma Net Operating Income from any
Unencumbered Asset acquired during such fiscal quarter shall be entitled to
include such Property for the entire quarter in the foregoing calculation.  If an Unencumbered Asset is not owned as of
the last day of a quarter then the Net Operating Income from such asset shall
be excluded from the foregoing calculation.


 


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


 























 


“Unencumbered Net Operating
Income” means the sum of (a) Net Operating Income from all
Unencumbered Assets for the fiscal quarter most recently ending and
(b) income attributable to Unencumbered Mortgage Notes for such fiscal
quarter, other than income attributable to an Unencumbered Mortgage Note where
(i) any required principal or interest payment due under such Unencumbered
Mortgage Note is more than 60 days past due or (ii) the maker of such
Unencumbered Mortgage Note is the subject of a case, proceeding or condition of
any of the types described in Section 10.1.(f) or 10.1.(g).  To the extent that income attributable to
Unencumbered Mortgage Notes would account for more than 10.0% of Unencumbered
Net Operating Income, such excess shall be excluded from Unencumbered Net
Operating Income and to the extent that the Net Operating Income of
Non-Domestic Properties would account for more than 15.0% of Unencumbered Net
Operating Income, such excess shall be excluded from Unencumbered Net Operating
Income. In addition, notwithstanding the foregoing, Unencumbered Net Operating
Income otherwise attributable to any Investment in SNH or HPT shall be excluded
from Unencumbered Net Operating Income.


 


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


 


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


 


“Unsecured Indebtedness”
means, with respect to a Person as of any given date, the aggregate principal
amount of all Indebtedness of such Person outstanding at such date that is not
Secured Indebtedness (excluding Indebtedness associated with Unconsolidated
Affiliates) and in the case of the Borrower shall include (without duplication)
Indebtedness that does not constitute Secured Indebtedness.


 


“Wachovia” means
Wachovia Bank, National Association, together with its successors and assigns.


 


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


 


Section 1.2.  General; References to Times.


 


Unless otherwise indicated, all accounting
terms, ratios and measurements shall be interpreted or determined in accordance
with GAAP in effect as of the Agreement Date.


 





















 


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


 


Section 1.3.  Effectiveness of Euro Provisions.


 


With respect to any state (or the currency of such state) that is not a
Participating Member State on the date of this Agreement, the provisions of
Sections 2.5.(d), 4.9.(a) and 4.9.(b) shall become effective in relation
to such state (and the currency of such state) at and from the date on which
such state becomes a Participating Member State.


 


Section 1.4.  Currencies; Currency Equivalents.


 


At any
time, any reference in the definition of the term “Alternate Currency” or in
any other provision of this Agreement to the Currency of any particular nation
means the lawful currency of such nation at such time whether or not the name
of such Currency is the same as it was on the date hereof.


 


ARTICLE II.
CREDIT FACILITY


 


Section 2.1.  Revolving Loans.


 


(a)                                  Generally.  Subject to the terms and conditions hereof,
during the period from the Effective Date to but excluding the Termination
Date, each Lender severally and not jointly agrees to make Revolving Loans in
Dollars to the Borrower in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the amount of such Lender’s
Commitment.  Subject to the terms and
conditions of this Agreement, during the period from the Effective Date to but
excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.


 


(b)                                 Requesting
Revolving Loans.  The Borrower shall
give the Agent notice pursuant to a Notice of Borrowing or telephonic notice of
each borrowing of Revolving Loans.  Each
Notice of Borrowing shall be delivered to the Agent before 11:00 a.m.
(i) in the case of LIBOR Loans, on the date three Business Days prior to
the proposed date of such borrowing and (ii) in


 





















 


the case of Base Rate Loans, on the date one Business Day prior to the
proposed date of such borrowing.  Any
such telephonic notice shall include all information to be specified in a
written Notice of Borrowing and shall be promptly confirmed in writing by the
Borrower pursuant to a Notice of Borrowing sent to the Agent by telecopy on the
same day of the giving of such telephonic notice.  The Agent will transmit by telecopy the
Notice of Borrowing (or the information contained in such Notice of Borrowing)
to each Lender promptly upon receipt by the Agent.  Each Notice of Borrowing or telephonic notice
of each borrowing shall be irrevocable once given and binding on the Borrower.


 


(c)                                  Disbursements of
Revolving Loan Proceeds.  No later
than 1:00 p.m., on the date specified in the Notice of Borrowing, each Lender
will make available for the account of its applicable Lending Office to the
Agent at the Principal Office, in immediately available funds and in the
applicable Currency, the proceeds of the Revolving Loan to be made by such
Lender.  With respect to Revolving Loans
to be made after the Effective Date, unless the Agent shall have been notified
by any Lender prior to the specified date of borrowing that such Lender does
not intend to make available to the Agent the Revolving Loan to be made by such
Lender on such date, the Agent may assume that such Lender will make the
proceeds of such Revolving Loan available to the Agent on the date of the
requested borrowing as set forth in the Notice of Borrowing and the Agent may
(but shall not be obligated to), in reliance upon such assumption, make
available to the Borrower the amount of such Revolving Loan to be provided by
such Lender.  Subject to satisfaction of
the applicable conditions set forth in Article V. for such borrowing, the
Agent will make the proceeds of such borrowing available to the Borrower no
later than 2:00 p.m. on the date and at the account specified by the Borrower
in such Notice of Borrowing.


 


(d)                                 Loans Outstanding
under Existing Credit Agreement.  The
Borrower and the Lenders agree that as of the Effective Date all Revolving
Loans (as defined in the Existing Credit Agreement) shall be deemed to be
Revolving Loans outstanding hereunder. 
Accordingly, as of the Effective Date, such Revolving Loans shall be
allocated among Lenders in accordance with their respective Commitment
Percentages, and each Lender agrees to make such payments to the other Lenders
and any Person who ceased to be a “Lender” under the Existing Credit Agreement
upon the Effective Date in such amounts as are necessary to effect such
allocation.  All such payments shall be
made to the Agent for the account of the Person to be paid and shall be made on
a net basis.


 


Section 2.2.  Alternate Currency Loans.


 


(a)                                  Alternate Currency
Loans.  Subject to the terms and
conditions hereof, during the period from the Effective Date to but excluding
the Alternate Currency Termination Date, the Alternate Currency Lender agrees
to make Alternate Currency Loans in any Alternate Currency to the Borrower in
an aggregate principal amount at any one time outstanding up to, but not
exceeding, the amount of the Alternate Currency Commitment.  Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Alternate Currency Loans
hereunder.  The Alternate Currency Loans
shall, in addition to this Agreement, be evidenced by the Alternate Currency
Note.


 





















 


(b)                                 Procedure for
Borrowing Alternate Currency Loans. 
The Borrower shall give the Agent and the Alternate Currency Lender
notice pursuant to a Notice of Alternate Currency Borrowing or telephonic
notice of each borrowing of Alternate Currency Loans.  Each Notice of Alternate Currency Borrowing
shall be delivered to the Agent no later than 11:00 a.m. on the date 3 Business
Days prior to the proposed date of such borrowing.  Any such notice given telephonically shall
include all information to be specified in a written Notice of Alternate
Currency Borrowing and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Alternate Currency Borrowing sent to the Agent by
telecopy on the same day of the giving of such telephonic notice.  Not later than 11:00 a.m. (the local time of
the Agent’s Correspondent) on the date of the requested Alternate Currency Loan
and subject to satisfaction of the applicable conditions set forth in
Article V. for such
borrowing, the Alternate Currency Lender will make available to the Agent for
the account of the Borrower at the office of the Agent’s Correspondent the
proceeds of such Alternate Currency Loan in immediately available funds and in
the applicable Alternate Currency.


 


(c)                                  Refunding
of Alternate Currency Loans.  Upon
the occurrence of a Refunding Event, the Alternate Currency Lender may, on behalf
of the Borrower (which hereby irrevocably directs the Alternate Currency Lender
to act on its behalf), request a borrowing of Base Rate Loans from the Lenders
in an amount equal to the Dollar Equivalent of any Alternate Currency Loan at
such time.  The limitations of
Section 3.5.(a) shall not
apply to any borrowing of Base Rate Loans made pursuant to this
subsection.  The Alternate Currency
Lender shall give notice to the Agent (which shall promptly notify each Lender)
of any such borrowing of Base Rate Loans not later than 12:00 noon on the
proposed date of such borrowing.  No
later than 3:00 p.m. on such date, each Lender will make available to the
Agent at the Principal Office for the account of the Alternate Currency Lender,
in immediately available funds, the proceeds of the Base Rate Loan to be made
by such Lender and, to the extent of such Base Rate Loan, such Lender’s
participation in the Alternate Currency Loan so refunded shall be deemed to be
funded by such Base Rate Loan.  The Agent
shall pay the proceeds of such Base Rate Loans to the Alternate Currency
Lender, which shall apply such proceeds to repay such Alternate Currency
Loan.  The Borrower shall pay to the
Alternate Currency Lender on demand the amount of such Alternate Currency Loans
to the extent amounts received from the Lenders are not sufficient to refund in
full the outstanding Alternate Currency Loans requested or required to be
refunded upon the occurrence of a Refunding Event.


 


(d)                                 Lenders’
Participations in Alternate Currency Loans. 
At the time each Alternate Currency Loan is made, each Lender shall
automatically (and without any further notice or action) be deemed to have
purchased from the Alternate Currency Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender’s Commitment
Percentage in such Alternate Currency Loan. 
If the Lenders are prohibited from making Loans required to be made
under the immediately preceding subsection (c) or under
Section 2.8.(b)(i) for any reason, including without limitation, the
occurrence of any Default or Event of Default described in
Section 10.1.(f) or 10.1.(g), upon notice from the Agent or the Alternate
Currency Lender, each Lender severally agrees to pay to the Agent in Dollars
for the account of the Alternate Currency Lender in respect of such
participation the amount of such Lender’s Commitment Percentage of the Dollar
Equivalent of each outstanding Alternate Currency Loan.  If such amount is not in fact made available
to the Alternate Currency Lender by any Lender, the


 





















 


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


 


Section 2.3.  Swingline Loans.


 


(a)                                  Swingline Loans.  Subject to the terms and conditions hereof,
during the period from the Effective Date to but excluding the Termination
Date, the Swingline Lender agrees to make Swingline Loans in Dollars to the
Borrower in an aggregate principal amount at any one time outstanding up to,
but not exceeding, the amount of the Swingline Commitment.  If at any time the aggregate principal amount
of the Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrower shall immediately pay the Agent
for the account of the Swingline Lender the amount of such excess.  Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Swingline Loans
hereunder.


 


(b)                                 Procedure for
Borrowing Swingline Loans.  The
Borrower shall give the Agent and the Swingline Lender notice pursuant to a
Notice of Swingline Borrowing or telephonic notice of each borrowing of a
Swingline Loan.  Each Notice of Swingline
Borrowing shall be delivered to the Swingline Lender no later than 3:00 p.m. on
the proposed date of such borrowing.  Any
such notice given telephonically shall include all information to be specified
in a written Notice of Swingline Borrowing and shall be promptly confirmed in
writing by the Borrower pursuant to a Notice of Swingline Borrowing sent to the
Swingline Lender by telecopy on the same day of the giving of such telephonic notice.  On the date of the requested Swingline Loan
and subject to satisfaction of the applicable conditions set forth in
Article V. for such borrowing, the Swingline Lender will make the proceeds
of such Swingline Loan available to the Borrower in Dollars, in immediately
available funds, at the account specified by the Borrower in


 





















 


the Notice of Swingline Borrowing not later than 11:00 a.m. on such
date if the Swingline Lender received such Notice of Swingline Borrowing by
9:00 a.m. on such date, and otherwise not later than 4:00 p.m. on such date.


 


(c)                                  Interest.  Swingline Loans shall bear interest at a per
annum rate equal to the Base Rate plus the Applicable Margin for Base
Rate Loans (or at such other rate or rates as the Borrower and the Swingline Lender
may agree from time to time in writing). 
Interest payable on Swingline Loans is solely for the account of the
Swingline Lender.  All accrued and unpaid
interest on Swingline Loans shall be payable on the dates and in the manner
provided in Section 2.5. with respect to interest on Base Rate Loans
(except as the Swingline Lender and the Borrower may otherwise agree in writing
in connection with any particular Swingline Loan).


 


(d)                                 Swingline Loan
Amounts, Etc.  Each Swingline Loan
shall be in the minimum amount of $1,000,000 and integral multiples of $500,000
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower.  Any voluntary prepayment of a
Swingline Loan must be in integral multiples of $100,000 or the aggregate
principal amount of all outstanding Swingline Loans (or such other minimum
amounts upon which the Swingline Lender and the Borrower may agree) and in
connection with any such prepayment, the Borrower must give the Swingline
Lender prior written notice thereof no later than 10:00 a.m. on the date
of such prepayment.  The Swingline Loans
shall, in addition to this Agreement, be evidenced by the Swingline Note.


 


(e)                                  Repayment and
Participations of Swingline Loans. 
The Borrower agrees to repay each Swingline Loan within one Business Day
of demand therefor by the Swingline Lender and in any event, within 5 Business
Days after the date such Swingline Loan was made.  Notwithstanding the foregoing, the Borrower
shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Swingline Loans on the Termination Date (or such
earlier date as the Swingline Lender and the Borrower may agree in
writing).  In lieu of demanding repayment
of any outstanding Swingline Loan from the Borrower in respect of which the
Agent has not either (x) received a Notice of Borrowing indicating that
such Swingline Loan is to be repaid with the proceeds thereof or
(y) received notice from the Borrower that it intends to repay such
Swingline Loan on a specified date and, in the case of this clause (y)
only, such Swingline Loan is not repaid by 11:30 a.m. on such date, the
Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), request a borrowing of Revolving
Loans (which shall be Base Rate Loans) from the Lenders in an amount equal to
the principal balance of such Swingline Loan. 
The limitations of Section 3.5.(a) shall not apply to any borrowing
of Base Rate Loans made pursuant to this subsection.  The Swingline Lender shall give notice to the
Agent (which shall promptly notify each Lender) of any such borrowing of Base
Rate Loans not later than 12:00 noon on the proposed date of such
borrowing.  No later than 3:00 p.m.
on such date, each Lender will make available to the Agent at the Principal
Office for the account of Swingline Lender, in immediately available funds, the
proceeds of the Base Rate Loan to be made by such Lender and, to the extent of
such Base Rate Loan, such Lender’s participation in the Swingline Loan so
repaid shall be deemed to be funded by such Base Rate Loan.  The Agent shall pay the proceeds of such Base
Rate Loans to the Swingline Lender, which shall apply such proceeds to repay
such Swingline Loan.  At the time each
Swingline Loan is made, each Lender shall automatically (and


 





















 


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


 


Section 2.4.  Letters of Credit.


 


(a)                                  Letters of Credit.  Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters
of credit (each a “Letter of Credit”) denominated in Dollars up to a maximum
aggregate Stated Amount at any one time outstanding not to exceed the L/C
Commitment Amount.


 


(b)                                 Terms of Letters of
Credit.  At the time of issuance, the
amount, form, terms and conditions of each Letter of Credit, and of any drafts
or acceptances thereunder, shall be subject to approval by the Agent and the
Borrower.  Notwithstanding the foregoing,
in no event may the expiration date of any Letter of Credit extend beyond the
earlier of (i) the date one year from its date of issuance or (ii) the Termination
Date.


 





















 


(c)                                  Requests for Issuance
of Letters of Credit.  The Borrower
shall give the Agent written notice (or telephonic notice promptly confirmed in
writing) at least 5 Business Days prior to the requested date of issuance of a
Letter of Credit, such notice to describe in reasonable detail the proposed
terms of such Letter of Credit and the nature of the transactions or
obligations proposed to be supported by such Letter of Credit, and in any event
shall set forth with respect to such Letter of Credit (i) the proposed
initial Stated Amount, (ii) the beneficiary or beneficiaries, and (iii)
the proposed expiration date.  The
Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Agent.  Provided the Borrower has given the notice
prescribed by the first sentence of this subsection and subject to
Section 2.15. and the other terms and conditions of this Agreement,
including the satisfaction of any applicable conditions precedent set forth in
Article V., the Agent shall issue the requested Letter of Credit on the
requested date of issuance for the benefit of the stipulated beneficiary.  Upon the written request of the Borrower, the
Agent shall deliver to the Borrower a copy of each issued Letter of Credit
within a reasonable time after the date of issuance thereof.  To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such
Loan Document shall control.


 


(d)                                 Reimbursement
Obligations.  Upon receipt by the Agent
from the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Agent shall promptly notify the Borrower of the amount to
be paid by the Agent as a result of such demand and the date on which payment
is to be made by the Agent to such beneficiary in respect of such demand; provided,
however, the Agent’s failure to give, or delay in giving, such notice
shall not discharge the Borrower in any respect from the applicable
Reimbursement Obligation.  The Borrower
hereby unconditionally and irrevocably agrees to pay and reimburse the Agent
for the amount of each demand for payment under such Letter of Credit on or
prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind (other than notice as provided in this
subsection).  Upon receipt by the Agent
of any payment in respect of any Reimbursement Obligation, the Agent shall
promptly pay to each Lender that has acquired a participation therein under the
second sentence of Section 2.4.(i) such Lender’s Commitment Percentage of
such payment.


 


(e)                                  Manner of
Reimbursement.  Upon its receipt of a
notice referred to in the immediately preceding subsection (d), the
Borrower shall advise the Agent whether or not the Borrower intends to borrow
hereunder to finance its obligation to reimburse the Agent for the amount of
the related demand for payment.  If the
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in
Article V. would permit the making of Revolving Loans, the Borrower shall
be deemed to have requested a borrowing of Revolving Loans (which shall be Base
Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the
Agent shall give each Lender notice not later than 12:00 noon on the proposed
date of borrowing of the amount of the Revolving Loan to be made available to
the Agent which each Lender shall make available to the Agent not later than
3:00 p.m. on such date and (ii) if such conditions would not permit the
making of Revolving Loans, the provisions of subsection (j) of this
Section shall apply.  The
limitations of Section 3.5.(a) shall not apply to any borrowing of Base
Rate Loans under this subsection.


 





















 


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


 


(g)                                 Agent’s Duties
Regarding Letters of Credit; Unconditional Nature of Reimbursement Obligation.  In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Agent shall only be required to
use the same standard of care as it uses in connection with examining documents
presented in connection with drawings under letters of credit in which it has
not sold participations and making payments under such letters of credit.  The Borrower assumes all risks of the acts
and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries
of such Letters of Credit.  In furtherance
and not in limitation of the foregoing, neither the Agent nor any of the
Lenders shall be responsible for (i) the form, validity, sufficiency, accuracy,
genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored
under any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) failure of the beneficiary
of any Letter of Credit to comply fully with conditions required in order to
draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telex,
telecopy or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under any
Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any Letter of Credit, or the proceeds of any drawing under any
Letter of Credit; or (viii) any consequences arising from causes beyond the
control of the Agent or the Lenders. 
None of the above shall affect, impair or prevent the vesting of any of
the Agent’s rights or powers hereunder. 
Any action taken or omitted to be taken by the Agent under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create against the Agent or
any Lender any liability to the Borrower or any Lender.  In this connection, the obligation of the
Borrower to reimburse the Agent for any drawing made under any Letter of Credit
shall be absolute, unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances whatsoever,
including without limitation, the following circumstances: (A) any lack of
validity or enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Agent, any Lender or
any other Person; (E) any demand, statement or any other document presented
under a Letter of Credit proving to be forged,


 





















 


fraudulent, invalid or insufficient in any respect or any statement
therein or made in connection therewith being untrue or inaccurate in any
respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Agent under any Letter of Credit against
presentation of a draft or certificate which does not strictly comply with the
terms of such Letter of Credit; and (H) any other act, omission to act, delay
or circumstance whatsoever that might, but for the provisions of this Section,
constitute a legal or equitable defense to or discharge of the Borrower’s
Reimbursement Obligations. 
Notwithstanding anything to the contrary contained in this
Section or Section 12.9., but not in limitation of the Borrower’s
unconditional obligation to reimburse the Agent for any drawing made under a
Letter of Credit as provided in this Section, the Borrower shall have no
obligation to indemnify the Agent or any Lender in respect of any liability
incurred by the Agent or such Lender arising solely out of the gross negligence
or willful misconduct of the Agent or such Lender in respect of a Letter of
Credit as actually and finally determined by a court of competent
jurisdiction.  Except as otherwise
provided in this Section, nothing in this Section shall affect any rights
the Borrower may have with respect to the gross negligence or willful
misconduct of the Agent or any Lender with respect to any Letter of Credit.


 


(h)                                 Amendments, Etc.  The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to
the same conditions applicable under this Agreement to the issuance of new
Letters of Credit (including, without limitation, that the request therefor be
made through the Agent), and no such amendment, supplement or other
modification shall be issued unless either (i) the respective Letter of
Credit affected thereby would have complied with such conditions had it
originally been issued hereunder in such amended, supplemented or modified form
or (ii) the Requisite Lenders shall have consented thereto.  In connection with any such amendment,
supplement or other modification, the Borrower shall pay the Fees, if any,
payable under the last sentence of Section 3.6.(b).


 


(i)                                     Lenders’
Participation in Letters of Credit. 
Immediately upon the issuance by the Agent of any Letter of Credit each
Lender shall be deemed to have irrevocably and unconditionally purchased and
received from the Agent, without recourse or warranty, an undivided interest
and participation to the extent of such Lender’s Commitment Percentage of the
liability of the Agent with respect to such Letter of Credit and each Lender
thereby shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to the Agent
to pay and discharge when due, such Lender’s Commitment Percentage of the
Agent’s liability under such Letter of Credit. 
In addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further
action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Agent by the Borrower in respect of such Letter of Credit and
(ii) a participation in a percentage equal to such Lender’s Commitment
Percentage in any interest or other amounts payable by the Borrower in respect
of such Reimbursement Obligation (other than the Fees payable to the Agent
pursuant to the second and last sentences of Section 3.6.(b)).


 


(j)                                     Payment
Obligation of Lenders.  Each Lender
severally agrees to pay to the Agent on demand in immediately available funds
in Dollars the amount of such Lender’s Commitment


 





















 


Percentage of each drawing paid by the Agent under each Letter of
Credit to the extent such amount is not reimbursed by the Borrower pursuant to
Section 2.4.(d).  Each Lender’s
obligation to make such payments to the Agent under this subsection, and the
Agent’s right to receive the same, shall be absolute, irrevocable and
unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other Lender
to make its payment under this subsection, (ii) the financial condition of
the Borrower or any other Loan Party, (iii) the existence of any Default
or Event of Default, including any Event of Default described in
Section 10.1.(f) or 10.1.(g) or (iv) the termination of the
Commitments.  Each such payment to the
Agent shall be made without any offset, abatement, withholding or deduction
whatsoever; provided, however, that the maximum amount payable by any Lender in
respect of any drawing under any Letter of Credit, whether pursuant to this
subsection (j) or Section 2.4.(e), shall not exceed such Lender’s
Commitment Percentage of such drawing.


 


(k)                                  Information to
Lenders.  The Agent shall promptly
notify each Lender of (a) the issuance of a Letter of Credit and (b) the
reduction of the stated amount of a Letter of Credit. In addition, the Agent
shall deliver to a Lender such other information regarding an outstanding
Letter of Credit as such Lender may reasonably request.  Other than as set forth in this subsection,
the Agent shall have no duty to notify the Lenders regarding the issuance or
other matters regarding Letters of Credit issued hereunder.  The failure of the Agent to perform its
requirements under this subsection shall not relieve any Lender from its
obligations under Section 2.4.(j).


 


Section 2.5.  Rates and Payment of Interest on Loans.


 


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


 


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


 


(ii)                                  during
such periods as such Loan is a LIBOR Loan not denominated in an Alternate
Currency, at Adjusted LIBOR for such Loan for the Interest Period therefor plus
the Applicable Margin; and


 


(iii)                               during
such periods as such Loan is an Alternate Currency Loan, at LIBOR for such Loan
for the Interest Period therefor plus the Applicable Margin (plus Mandatory
Costs, if applicable).


 


Notwithstanding the foregoing, during the continuance of an Event of
Default, the Borrower shall pay to the Agent for the account of each Lender
interest at the Post-Default Rate on the outstanding principal amount of any
Loan made by such Lender, on all Reimbursement Obligations and on any other
amount payable by the Borrower hereunder or under the Note held by such Lender
to or for the account of such Lender (including without limitation, accrued but
unpaid interest to the extent permitted under Applicable Law).


 





















 


(b)                                 Payment of Interest.  Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly in arrears on the first day
of each calendar month, (ii) in the case of a LIBOR Loan, on the last day
of each Interest Period therefor, and, if such Interest Period is longer than
three months, at three month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, in arrears upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid, Continued or
Converted).  Interest payable at the
Post-Default Rate shall be payable from time to time on demand.  Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower.  All determinations by the
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.


 


(c)                                  Ratings Change.
If the Applicable Margin shall change as a result of a change in the Borrower’s
Credit Rating and then within a 90-day period change back to the Applicable
Margin in effect at the beginning of such period as a result of another change
in such Credit Rating, and (i) if the initial change in the Applicable
Margin were an increase, then the Borrower will receive as a credit against its
Obligations any incremental interest expense with respect to the Loans and the
Facility Fee for the period during which the increase existed and (ii) if
the initial change in the Applicable Margin were a decrease, then the Borrower
shall promptly pay to the Agent for the benefit of the Lenders additional
interest with respect to the Loans and additional Facility Fees for the period
during which the increase existed determined as if such decrease had not
occurred.


 


(d)                                 Calculations
for Converted Currencies.  Subject to
Section 1.3., with respect to the Currency of any state that becomes a
Participating Member State, the accrual of interest or fees expressed in this
Agreement with respect to such Currency shall be based upon the applicable
convention or practice in the London Interbank Market for the basis of accrual
of interest or fees in respect of the Euro, which convention or practice shall
replace such expressed basis effective as of and from the date on which such
state becomes a Participating Member State; provided that if any Loan in the
Currency of such state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.


 


Section 2.6.  Number of Interest Periods.


 


There may be no more than 6 different
Interest Periods for LIBOR Loans outstanding at the same time.


 


Section 2.7.  Repayment of Loans.


 


The Borrower shall repay the entire
outstanding principal amount of, and all accrued but unpaid interest on, (a)
the Alternate Currency Loans on the Alternate Currency Termination Date and (b)
the Revolving Loans on the Termination Date.


 





















 


Section 2.8.  Prepayments.


 


(a)                                  Optional.  Subject to Section 4.4., the Borrower
may prepay any Loan at any time without premium or penalty.  The Borrower shall give the Agent at least
one Business Day’s prior written notice of the prepayment of any Revolving Loan
denominated in Dollars and at least 3 Business Days’ prior notice of the
prepayment of any Alternate Currency Loan. 
The Agent shall give notice of any such prepayment to each Lender
promptly upon receipt of notice thereof from the Borrower.


 


(b)                                 Mandatory.


 


(i)                                     If
on the first Business Day of a calendar month or on any other date deemed
necessary by the Agent in its discretion, either


 


(x)                                   the
Dollar Equivalent at such time of the outstanding Alternate Currency Loans
exceeds the amount of the Alternate Currency Commitment in effect at such time,
or


 


(y)                                 the
aggregate principal amount, based on the Dollar Equivalent at such time of all
outstanding Alternate Currency Loans and of all outstanding Revolving Loans,
together with the aggregate amount of all Letter of Credit Liabilities and the
aggregate principal amount of all outstanding Swingline Loans, exceeds the
aggregate amount of the Commitments in effect at such time,


 


in either case, solely because of currency
fluctuations, then the Alternate Currency Lender may (in the case of
clause (x)) or the Agent may (in the case of clause (y)), on behalf
of the Borrower (which hereby irrevocably directs the Alternate Currency Lender
or the Agent, as the case may be, to act on its behalf), request a borrowing of
Base Rate Loans from the Lenders in an amount equal to such excess.  The limitations of Section 3.5.(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection.  The Alternate Currency Lender shall give
notice to the Agent, if applicable, and the Agent shall in any event promptly
notify each Lender, of any such borrowing of Base Rate Loans not later than
12:00 noon on the proposed date of such borrowing.  No later than 3:00 p.m. on such date,
each Lender will make available to the Agent at the Principal Office, in
immediately available funds, the proceeds of the Base Rate Loan to be made by
such Lender.  In the case of
clause (x), the Agent shall pay the proceeds of such Base Rate Loans to
the Alternate Currency Lender, which shall apply such proceeds to repay the
outstanding principal balance of Alternate Currency Loans in such manner as the
Alternate Currency Lender may reasonably determine and in the case of
clause (y), such proceeds shall be applied to pay all amounts of principal
outstanding on the Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2.
and if any Letters of Credit are outstanding at such time the remainder, if
any, shall be deposited into the Collateral Account for application as provided
in Section 10.5.


 


(ii)                                  If
at any time the aggregate principal amount, based on the Dollar Equivalent at
such time of all outstanding Alternate Currency Loans, and of all


 





















 


outstanding Revolving Loans, together with
the aggregate amount of all Letter of Credit Liabilities and the aggregate
principal amount of all outstanding Swingline Loans, exceeds the aggregate
amount of the Commitments in effect at such time (other than as a result of
currency fluctuations), the Borrower shall immediately upon demand from the
Agent pay to the Agent for the accounts of the Lenders the amount of such
excess.  Such payment shall be applied to
pay all amounts of principal outstanding on the Loans and any Reimbursement
Obligations pro rata in accordance with Section 3.2. and if any Letters of Credit are outstanding at such time the
remainder, if any, shall be deposited into the Collateral Account for
application as provided in Section 10.5.


 


(iii)                               If
any outstanding LIBOR Loans are paid by reason of this subsection (b)
prior to the end of the applicable Interest Period therefor, the Borrower shall
pay all amounts due under Section 4.4.


 


Section 2.9.  Continuation.


 


So long as no Default or Event of Default
shall have occurred and be continuing, the Borrower may on any Business Day,
with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan in the same Currency by selecting a new
Interest Period for such LIBOR Loan.  Each
new Interest Period selected under this Section shall commence on the last
day of the immediately preceding Interest Period.  Each selection of a new Interest Period shall
be made by the Borrower giving to the Agent a Notice of Continuation not later
than 11:00 a.m. on the third Business Day prior to the date of any such
Continuation of a LIBOR Loan.  Such
notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (i) the proposed date of such Continuation,
(ii) the LIBOR Loans and portions thereof subject to such Continuation and
(iii) the duration of the selected Interest Period, all of which shall be
specified in such manner as is necessary to comply with all limitations on Loans
outstanding hereunder.  Each Notice of
Continuation shall be irrevocable by and binding on the Borrower once
given.  Promptly after receipt of a
Notice of Continuation, the Agent shall notify each Lender by telecopy, or
other similar form of transmission, of the proposed Continuation.  If the Borrower shall fail to select in a
timely manner a new Interest Period for any LIBOR Loan in accordance with this
Section, such Loan will automatically, on the last day of the current Interest
Period therefor, be Continued as a LIBOR having an Interest Period of 1 month,
and if such Loan is an Alternate Currency Loan shall remain denominated in the
same Alternate Currency; provided, however, if a Default or Event of Default
exists at such time, (x) in the case of a Revolving Loan, such Loan will
automatically, on the last day of the current Interest Period therefor, Convert
into a Base Rate Loan notwithstanding the first sentence of Section 2.10. or the Borrower’s failure to
comply with any of the terms of such Section and (y) in the case of
an Alternate Currency Loan, shall be subject to the provisions of
Section 2.2.(c).


 


Section 2.10.  Conversion.


 


So long as no Default or Event of Default shall have
occurred and be continuing, the Borrower may on any Business Day, upon the
Borrower’s giving of a Notice of Conversion to the Agent, Convert all or a
portion of a Revolving Loan of one Type into a Revolving Loan of another
Type.  Any Conversion of a LIBOR Loan
into a Base Rate Loan shall be made on, and


 





















 


only on, the last day of an Interest Period for such LIBOR Loan and,
upon Conversion of a Base Rate Loan into a LIBOR Loan, the Borrower shall pay
accrued interest to the date of Conversion on the principal amount so
Converted.  Each such Notice of
Conversion shall be given not later than 11:00 a.m. on the Business Day prior
to the date of any proposed Conversion into Base Rate Loans, and on the third
Business Day prior to the date of any proposed Conversion into LIBOR
Loans.  Promptly after receipt of a
Notice of Conversion, the Agent shall notify each Lender by telecopy, or other
similar form of transmission, of the proposed Conversion.  Subject to the restrictions specified above,
each Notice of Conversion shall be by telephone (confirmed immediately in
writing) or telecopy in the form of a Notice of Conversion specifying
(a) the requested date of such Conversion, (b) the Type of Loan to be
Converted, (c) the portion of such Type of Loan to be Converted,
(d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest
Period of such Loan.  Each Notice of
Conversion shall be irrevocable by and binding on the Borrower once given.


 


Section 2.11.  Notes.


 


(a)                                  Revolving Note.  The Revolving Loans made by each Lender
shall, in addition to this Agreement, also be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit J (each a “Revolving
Note”), payable to the order of such Lender in a principal amount equal to the
amount of its Commitment as originally in effect and otherwise duly completed.


 


(b)                                 Records.  The date, amount, interest rate, Type and
duration of Interest Periods (if applicable) of each Loan made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and such entries shall be binding
on the Borrower absent manifest error.


 


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


 


Section 2.12.  Voluntary Reductions of the Commitment.


 


The Borrower shall have the right to
terminate or reduce the aggregate unused amount of the Commitments (for which
purpose use of the Commitments shall be deemed to include the aggregate amount
of Letter of Credit Liabilities, the aggregate principal amount of all
outstanding Swingline Loans and the Dollar Equivalent at such time of the
aggregate principal amount of all outstanding Alternate Currency Loans) at any
time and from time to time without penalty or premium upon not less than 5 Business
Days prior written notice to the Agent of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any
such reduction and shall be irrevocable once given and effective only upon
receipt by the Agent.  The Agent will
promptly transmit such notice to each Lender. 
The Commitments,


 





















 


once terminated or reduced may not be increased or reinstated.  Any reduction in the aggregate amount of the
Commitments shall result in a proportionate reduction (rounded to the next
lowest integral multiple of multiple of $100,000) in the Swingline Commitment,
the L/C Commitment Amount and the Base Alternate Currency Commitment.


 


Section 2.13.  Extension of Termination Dates.


 


(a)                                  Termination Date.  The Borrower shall have the right,
exercisable one time, to extend the current Termination Date by one year by
executing and delivering to the Agent at least 30 days but not more than 90
days prior to the current Termination Date a written request (an “Extension
Request”).  The Agent shall forward to
each Lender a copy of the Extension Request delivered to the Agent promptly
upon receipt thereof.  Subject to
satisfaction of the following conditions, the Termination Date shall be
extended for one year effective upon receipt of the Extension Request and
payment of the fee referred to in the following clause (ii):
(i) immediately prior to such extension and immediately after giving
effect thereto, (x) no Default or Event of Default shall exist; and
(y) the representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of them is a
party, shall be true and correct in all material respects on and as of the date
of such extension with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct on and as of such earlier date) and
except for changes in factual circumstances not prohibited under the Loan
Documents; and (ii) the Borrower shall have paid the Fees payable under
Section 3.6.(c).


 


(b)                                 Alternate Currency
Termination Date.  The Borrower may
request that the Alternate Currency Lender agree to extend the current
Alternate Currency Termination Date by successive 364-day periods by executing
and delivering to the Agent at least 30 days but not more than 60 days prior to
the current Alternate Currency Termination Date a written request (an
“Alternate Currency Extension Request”); provided, however, the Alternate
Currency Termination Date may not be extended to a date later than the
Termination Date.  The Agent shall
forward to the Alternate Currency Lender a copy of the Alternate Currency Extension
Request delivered to the Agent promptly upon receipt thereof.  Subject to satisfaction of the following
conditions, the Alternate Currency Termination Date shall be extended by 364
days: (a) immediately prior to such extension and immediately after giving
effect thereto, (i) no Default or Event of Default shall exist; and
(ii) the representations and warranties made or deemed made by the
Borrower and each other Loan Party in the Loan Documents to which any of them
is a party, shall be true and correct in all material respects on and as of the
date of such extension with the same force and effect as if made on and as of
such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct on and as of such earlier date)
and except for changes in factual circumstances not prohibited under the Loan
Documents; and (b) the Alternate Currency Lender shall have given its written
consent to such extension to the Agent and the Borrower at least 15 days prior
to the current Alternate Currency Termination Date.  If the Alternate Currency Lender shall fail
to provide its written consent by the date 15 days prior to the current
Alternate Currency Termination Date, then the Alternate Currency Lender shall
be deemed to have not consented to the requested extension.  The Agent shall notify


 





















 


each Lender of any extension of the Alternate Currency Termination Date
promptly upon the effectiveness thereof.


 


Section 2.14.  Expiration or Maturity Date of Letters of
Credit Past Termination Date.


 


If on the date (the “Facility Termination
Date”) the Commitments are terminated (whether voluntarily, by reason of the
occurrence of an Event of Default or otherwise), there are any Letters of
Credit outstanding hereunder, the Borrower shall, on the Facility Termination
Date, pay to the Agent an amount of money equal to the Stated Amount of such
Letter(s) of Credit for deposit into the Collateral Account.


 


Section 2.15.  Amount Limitations.


 


Notwithstanding any other term of this
Agreement or any other Loan Document, no Lender shall be required to make a
Loan or fund a participation such Lender has acquired in a Swingline Loan or
Alternate Currency Loan hereunder, the Agent shall not be required to issue a
Letter of Credit and no reduction of the Commitments pursuant to
Section 2.12. shall take effect, to the extent that immediately after the
making of such Loan or funding of such participation, the issuance of such
Letter of Credit or such reduction in the Commitments:


 


(a)                                  The aggregate
principal amount of all outstanding Revolving Loans, together with the
aggregate principal amount of all outstanding Swingline Loans, the Dollar
Equivalent at such time of the aggregate principal amount of all outstanding
Alternate Currency Loans and the aggregate amount of all Letter of Credit
Liabilities, would exceed the aggregate amount of the Commitments at such time;
or


 


(b)                                 The aggregate
principal amount of all outstanding Revolving Loans made by such Lender,
together with the aggregate principal amount of all outstanding Swingline
Loans, the Dollar Equivalent at such time of the aggregate principal amount of
all outstanding Alternate Currency Loans and the aggregate amount of all Letter
of Credit Liabilities, in each case in which and to the extent such Lender has
acquired a participation hereunder, would exceed the aggregate amount of such
Lender’s Commitment at such time; or


 


(c)                                  The Dollar Equivalent
at such time of the aggregate principal amount of all outstanding Alternate
Currency Loans would exceed the Alternate Currency Commitment.


 


Section 2.16.  Increase of Commitments.


 


With the prior consent of the Agent (which
shall not be unreasonably withheld or delayed), the Borrower shall have the
right at any time and from time to time during the period beginning on the
Effective Date to but excluding the Termination Date to request increases in
the aggregate amount of the Commitments (provided that after giving effect to
any increases in the Commitments pursuant to this Section, the aggregate amount
of the Commitments may not exceed $1,500,000,000) by providing written notice
to the Agent, which notice shall be irrevocable once given.  Each such increase in the Commitments must be
in an aggregate minimum amount of $50,000,000 and integral multiples of
$10,000,000 in excess thereof.  No Lender
shall be required to increase its Commitment and any new Lender becoming a
party to


 





















 


this Agreement in connection with any such requested increase must be
an Eligible Assignee.  If a new Lender
becomes a party to this Agreement, or if any existing Lender agrees to increase
its Commitment, such Lender shall on the date it becomes a Lender hereunder (or
increases its Commitment, in the case of an existing Lender) (and as a
condition thereto) purchase from the other Lenders its Commitment Percentage
(as determined after giving effect to the increase of Commitments) of any
outstanding Revolving Loans, by making available to the Agent for the account
of such other Lenders at the Principal Office, in same day funds, an amount
equal to the sum of (A) the portion of the outstanding principal amount of
such Revolving Loans to be purchased by such Lender plus (B) the aggregate
amount of payments previously made by the other Lenders under
Section 2.4.(j) which have not been repaid plus (C) interest accrued
and unpaid to and as of such date on such portion of the outstanding principal
amount of such Revolving Loans.  The
Borrower shall pay to the Lenders amounts payable, if any, to such Lenders
under Section 4.4. as a result of the prepayment of any such Revolving
Loans.  No increase of the Commitments
may be effected under this Section if (x) a Default or Event of
Default shall be in existence on the effective date of such increase or
(y) any representation or warranty made or deemed made by the Borrower or
any other Loan Party in any Loan Document to which any such Loan Party is a
party is not (or would not be) true or correct on the effective date of such
increase (except for representations or warranties which expressly relate
solely to an earlier date).  In
connection with any increase in the aggregate amount of the Commitments
pursuant to this subsection, (a) any Lender becoming a party hereto shall
execute such documents and agreements as the Agent may reasonably request and
(b) the Borrower shall make appropriate arrangements so that each new
Lender, and any existing Lender increasing its Commitment, receives a new or
replacement Note, as appropriate, in the amount of such Lender’s Commitment
within 2 Business Days of the effectiveness of the applicable increase in the
aggregate amount of Commitments.


 


ARTICLE III. PAYMENTS, FEES AND OTHER
GENERAL PROVISIONS


 


Section 3.1.  Payments.


 


(a)                                  Generally.  Except with respect to Alternate Currency
Loans or to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day).  Except to the extent otherwise provided
herein, the Borrower shall make each payment of principal of, and interest on,
Alternate Currency Loans in the Alternate Currency in which such Alternate Currency
Loan was made, in immediately available funds, without deduction, set-off or
counterclaim, to the Agent’s Correspondent for the account of the Alternate
Currency Lender, not later than 11:00 a.m. (the local time of the Agent’s
Correspondent) on the date on which such payment shall become due.  Subject to Section 10.4. the Borrower
may, at the time of making each payment under this Agreement or any Note,
specify to the Agent the amounts payable by the Borrower hereunder to which
such payment is to be applied.  Each
payment received by the Agent for the account of a Lender under this Agreement
or any Note shall be paid to such Lender at the applicable Lending Office of
such Lender no later than 5:00 p.m. on the date of the Agent’s receipt
thereof.  If the Agent fails to


 





















 


pay such amount to a Lender as provided in the previous sentence, the
Agent shall pay interest on such amount until paid at a rate per annum equal to
the Federal Funds Rate from time to time in effect.  If the due date of any payment under this
Agreement or any other Loan Document would otherwise fall on a day which is not
a Business Day such date shall be extended to the next succeeding Business Day
and interest shall be payable for the period of such extension.


 


(b)                                 Payments in Euros.  With respect to the payment of any amount
denominated in Euros, the Agent shall not be liable to the Borrower or any of
the Lenders in any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this Agreement
to be paid by the Agent if the Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds (in Euros) to the account
of the Borrower which the Borrower shall have specified for such purpose. For
the purposes of this paragraph, “all relevant steps” means all such steps as
may be prescribed from time to time by the regulations or operating procedures
of such clearing or settlement system as the Agent may from time to time
determine for the purpose of clearing or settling payments in Euros.


 


Section 3.2.  Pro Rata Treatment.


 


Except to the extent otherwise provided
herein: (a) each borrowing from the Lenders under Section 2.1.(a),
2.2.(c), 2.3.(e), 2.4.(e) and 2.8.(b)(i) shall be made from the Lenders, each
payment of the Fees under Section 3.6.(a), the first sentence of
Section 3.6.(b), and Sections 3.6.(c) and (d) shall be made for the
account of the Lenders, and each termination or reduction of the amount of the
Commitments under Section 2.12. shall be applied to the respective
Commitments of the Lenders, pro rata according to the amounts of their
respective Commitments; (b) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for the account of the Lenders
pro rata in accordance with the respective unpaid principal amounts of the
Revolving Loans held by them, provided that if immediately prior to giving
effect to any such payment in respect of any Revolving Loans the outstanding
principal amount of the Revolving Loans shall not be held by the Lenders pro
rata in accordance with their respective Commitments in effect at the time such
Loans were made, then such payment shall be applied to the Revolving Loans in
such manner as shall result, as nearly as is practicable, in the outstanding
principal amount of the Revolving Loans being held by the Lenders pro rata in
accordance with their respective Commitments; (c) each payment of interest
on Revolving Loans by the Borrower shall be made for the account of the Lenders
pro rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders; (d) the making, Conversion and
Continuation of Revolving Loans of a particular Type (other than Conversions
provided for by Section 4.6.) shall be made pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of making
of Revolving Loans) or their respective Revolving Loans (in the case of
Conversions and Continuations of Revolving Loans) and the then current Interest
Period for each Lender’s portion of each Revolving Loan of such Type shall be
coterminous; (e) the Lenders’ participation in, and payment obligations in
respect of, Letters of Credit under Section 2.4., shall be pro rata in
accordance with their respective Commitments; (f) the Lender’s
participation in, and payment obligations in respect of, Swingline Loans under
Section 2.3., shall be in accordance with their respective Commitments;
and (g) the Lenders’ participation in, and payment obligations in respect of,
Alternate Currency Loans under Section 2.2.(e), shall be in accordance
with their


 





















 


respective Commitments.  All
payments of principal, interest, fees and other amounts in respect of the
Swingline Loans shall be for the account of the Swingline Lender only (except
to the extent any Lender shall have acquired and funded a participating
interest in any such Swingline Loan pursuant to Section 2.3.(e), in which
case such payments shall be pro rata in accordance with such participating
interests).  All payments of principal,
interest, fees and other amounts in respect of Alternate Currency Loans shall
be for the account of the Alternate Currency Lender only (except for Fees
payable under Section 3.6.(d) and except to the extent any Lender shall
have acquired and funded a participating interest in any such Alternate
Currency Loan pursuant to Section 2.2.(d), in which case such payments
shall be pro rata in accordance with such participating interests).


 


Section 3.3.  Sharing of Payments, Etc.


 


If a Lender shall obtain payment of any
principal of, or interest on, any Loan made by it to the Borrower under this
Agreement, or shall obtain payment on any other Obligation owing by the
Borrower or a Loan Party through the exercise of any right of set-off, banker’s
lien or counterclaim or similar right or otherwise or through voluntary
prepayments directly to a Lender or other payments made by the Borrower to a
Lender not in accordance with the terms of this Agreement and such payment
should be distributed to the Lenders pro rata in accordance with
Section 3.2. or Section 10.4., as applicable, such Lender shall
promptly purchase from the other Lenders participations in (or, if and to the
extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or
Section 10.4.  To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.  The Borrower
agrees that any Lender so purchasing a participation (or direct interest) in the
Loans or other Obligations owed to such other Lenders may exercise all rights
of set-off, banker’s lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation.  Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.


 


Section 3.4.  Several Obligations.


 


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


 


Section 3.5.  Minimum Amounts.


 


(a)                                  Borrowings and
Conversions.  Except as otherwise
provided in Sections 2.2.(c), 2.3.(e) and 2.4.(e), each borrowing of Base
Rate Loans shall be in an aggregate minimum


 





















 


amount of $1,000,000 and integral multiples of $500,000 in excess thereof
(or in any case, the aggregate amount of the unused Commitments).  Each borrowing of and each Conversion to
LIBOR Loans shall be in the aggregate minimum amount (and integral multiples in
excess thereof) set forth below for the Currency in which such Loans are
denominated (or in any case, the aggregate amount of the unused Commitments or
Alternate Currency Commitment, as applicable):


 


	
  Currency

  	
   

  	
  Aggregate Minimum

  Amount

  	
   

  	
  Integral Multiple

  	
   

  
	
  Dollars

  	
   

  	
  $2,000,000

  	
   

  	
  $1,000,000

  	
   

  
	
  Euro

  	
   

  	
  €2,000,000

  	
   

  	
  €1,000,000

  	
   

  
	
  Pounds
  Sterling

  	
   

  	
  £1,000,000

  	
   

  	
  £500,000

  	
   

  
	
  Canadian
  Dollars

  	
   

  	
  CA$2,000,000

  	
   

  	
  CA$1,000,000

  	
   

  



 


(b)                                 Prepayments.  Each voluntary prepayment of Revolving Loans
or Alternate Currency Loans shall be in an aggregate minimum amount (and
integral multiples in excess thereof) set forth below for the Currency in which
such Loans are denominated (or, if less, the aggregate principal amount of
Revolving Loans or Alternate Currency Loans, as applicable, then outstanding):


 


	
  Currency

  	
   

  	
  Aggregate Minimum

  Amount

  	
   

  	
  Integral Multiple

  	
   

  
	
  Dollars

  	
   

  	
  $1,000,000

  	
   

  	
  $500,000

  	
   

  
	
  Euro

  	
   

  	
  €1,000,000

  	
   

  	
  €500,000

  	
   

  
	
  Pounds
  Sterling

  	
   

  	
  £500,000

  	
   

  	
  £250,000

  	
   

  
	
  Canadian
  Dollars

  	
   

  	
  CA$1,000,000

  	
   

  	
  CA$500,000

  	
   

  



 


(c)                                  Reductions of
Commitments.  Each reduction of the
Commitments under Section 2.12. shall be in an aggregate minimum amount of
$10,000,000 and integral multiples of $5,000,000 in excess thereof.


 


(d)                                 Letters of Credit.  The initial Stated Amount of each Letter of
Credit shall be at least $500,000.


 


Section 3.6.  Fees.


 


(a)                                  Facility Fees.  The Borrower agrees to pay to the Agent for
the account of each Lender a facility fee equal to the average daily amount of
the Commitment of such Lender (whether or not utilized) times the Facility Fee
for the period from and including the Agreement Date to but excluding the date
such Lender’s Commitment is terminated or reduced to zero or the Termination
Date, such fee to be paid in arrears on (i) the last Business Day of
March, June, September and December in each year, (ii) the date
of each reduction in the Commitments (but only on the amount of the reduction)
and (iii) on the Termination Date.


 


(b)                                 Letter of Credit
Fees.  The Borrower agrees to pay to
the Agent for the account of each Lender a letter of credit fee at a rate per
annum equal to the Applicable Margin for LIBOR Loans times the daily average
Stated Amount of each Letter of Credit for the period from and including the
date of issuance of such Letter of Credit (x) to and including the date
such Letter of


 





















 


Credit expires or is terminated or (y) to but excluding the date
such Letter of Credit is drawn in full and is not subject to reinstatement, as
the case may be.  In addition, the
Borrower shall pay to the Agent for its own account and not the account of any
Lender, a fronting fee in respect of each Letter of Credit at the rate equal to
one-eighth of one percent (0.125%) per annum on the daily average Stated Amount
of such Letter of Credit for the period from and including the date of issuance
of such Letter of Credit (A) to and including the date such Letter of
Credit expires or is terminated or (B) to but excluding the date such
Letter of Credit is drawn in full.  The
fees provided for in the immediately preceding two sentences shall be
nonrefundable and payable in arrears (i) quarterly on the first day of each
calendar quarter, (ii) on the Termination Date, (iii) on the date the
Commitments are terminated or reduced to zero and (iv) thereafter from
time to time on demand of the Agent.  The
Borrower shall pay directly to the Agent from time to time on demand all
commissions, charges, costs and expenses in the amounts customarily charged by
the Agent from time to time in like circumstances with respect to the issuance
of each Letter of Credit, drawings, amendments and other transactions relating thereto.


 


(c)                                  Extension Fee.  If the Borrower exercises its right to extend
the Termination Date in accordance with Section 2.13., the Borrower agrees
to pay to the Agent for the account of each Lender a fee equal to one-fifth of
one percent (0.20%) of the amount of such Lender’s Commitment (whether or not
utilized) at the time of such extension. 
Such fee shall be due and payable in full at the time of such extension.


 


(d)                                 Alternate Currency
Participation Fee.  In consideration
of each Lender’s purchase from the Alternate Currency Lender of a participation
in the Alternate Currency Loans under Section 2.2.(d), the Alternate
Currency Lender shall pay to all of the Lenders a fee in Dollars on the
principal balance of the Alternate Currency Loans outstanding from time to time
determined at a per annum rate equal to (i) the Applicable Margin applicable to
such Alternate Currency Loans minus (ii) two-tenths of one-percent
(0.2%).  Such fee shall payable only upon
receipt by the Agent for the account of the Alternate Currency Lender of
interest payable by the Borrower in respect of Alternate Currency Loans under
Section 2.5. in which case such fee shall be payable with respect to the
period to which such interest payment relates.


 


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


 


Section 3.7.  Computations.


 


Unless otherwise expressly set forth herein,
any accrued interest on any Loan, any Fees or any other Obligations due
hereunder shall be computed on the basis of a year of 360 days and the actual
number of days elapsed; provided, however, interest on Alternate Currency Loans
denominated in Pounds Sterling or Canadian Dollars shall be computed on the
basis of a year of 365 days, and the actual number of days elapsed.


 


Section 3.8.  Usury.


 


In no event shall the amount of interest due
or payable on the Loans or other Obligations exceed the maximum rate of
interest allowed by Applicable Law and, if any such payment is


 





















 


paid by the Borrower or any other Loan Party or received by any Lender,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the respective Lender in writing that the Borrower elects
to have such excess sum returned to it forthwith.  It is the express intent of the parties
hereto that the Borrower not pay and the Lenders not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.


 


Section 3.9.  Agreement Regarding Interest and Charges.


 


The parties hereto hereby agree and stipulate
that the only charge imposed upon the Borrower for the use of money in
connection with this Agreement is and shall be the interest specifically
described in Section 2.5.(a)(i) through (iii) and in
Section 2.3.(c).  Notwithstanding
the foregoing, the parties hereto further agree and stipulate that all agency
fees, syndication fees, facility fees, closing fees, letter of credit fees,
underwriting fees, default charges, late charges, funding or “breakage”
charges, increased cost charges, attorneys’ fees and reimbursement for costs
and expenses paid by the Agent or any Lender to third parties or for damages
incurred by the Agent or any Lender, are charges made to compensate the Agent
or any such Lender for underwriting or administrative services and costs or
losses performed or incurred, and to be performed or incurred, by the Agent and
the Lenders in connection with this Agreement and shall under no circumstances
be deemed to be charges for the use of money. 
All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.


 


Section 3.10.  Statements of Account.


 


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


 


Section 3.11.  Defaulting Lenders.


 


(a)                                  Generally.  If for any reason any Lender (a “Defaulting
Lender”) shall fail or refuse to perform any of its obligations under this
Agreement or any other Loan Document to which it is a party within the time
period specified for performance of such obligation or, if no time period is
specified, if such failure or refusal continues for a period of two Business
Days after notice from the Agent, then, in addition to the rights and remedies
that may be available to the Agent or the Borrower under this Agreement or
Applicable Law, such Defaulting Lender’s right to participate in the
administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of the Agent or to be taken into account in
the calculation of the Requisite Lenders, shall be suspended during the
pendency of such failure or refusal.  If
a Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which


 





















 


the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction
of the defaulted payment and any related interest, any amounts otherwise
payable to such Defaulting Lender under this Agreement or any other Loan
Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest.  Any amounts
received by the Agent in respect of a Defaulting Lender’s Loans shall not be
paid to such Defaulting Lender and shall be held uninvested by the Agent and
either applied against the purchase price of such Loans under the following
subsection (b) or paid to such Defaulting Lender upon the Defaulting
Lender’s curing of its default.


 


(b)                                 Purchase or
Cancellation of Defaulting Lender’s Commitment.  Any Lender who is not a Defaulting Lender
shall have the right, but not the obligation, in its sole discretion, to
acquire all or a portion of a Defaulting Lender’s Commitment.  Any Lender desiring to exercise such right
shall give written notice thereof to the Agent and the Borrower no sooner than
2 Business Days and not later than 5 Business Days after such Defaulting Lender
became a Defaulting Lender.  If more than
one Lender exercises such right, each such Lender shall have the right to
acquire an amount of such Defaulting Lender’s Commitment in proportion to the
Commitments of the other Lenders exercising such right.  If after such 5th Business Day, the Lenders
have not elected to purchase all of the Commitment of such Defaulting Lender,
then the Borrower may, by giving written notice thereof to the Agent, such
Defaulting Lender and the other Lenders, either (i) demand that such
Defaulting Lender assign its Commitment to an Eligible Assignee subject to and
in accordance with the provisions of Section 12.5.(d) for the purchase
price provided for below or (ii) terminate the Commitment of such
Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other
Loan Documents.  No party hereto shall
have any obligation whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee.  Upon any
such purchase or assignment, the Defaulting Lender’s interest in the Loans and
its rights hereunder (but not its liability in respect thereof or under the
Loan Documents or this Agreement to the extent the same relate to the period
prior to the effective date of the purchase except to the extent assigned
pursuant to such purchase) shall terminate on the date of purchase, and the
Defaulting Lender shall promptly execute all documents reasonably requested to
surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 12.5.(d), shall pay to the Agent an assignment fee
in the amount of $7,000.  The purchase
price for the Commitment of a Defaulting Lender shall be equal to the amount of
the principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender.  Prior to payment of
such purchase price to a Defaulting Lender, the Agent shall apply against such
purchase price any amounts retained by the Agent pursuant to the last sentence
of the immediately preceding subsection (a).  The Defaulting Lender shall be entitled to
receive amounts owed to it by the Borrower under the Loan Documents which accrued
prior to the date of the default by the Defaulting Lender, to the extent the
same are received by the Agent from or on behalf of the Borrower.  There shall be no recourse against any Lender
or the Agent for the payment of such sums except to the extent of the receipt
of payments from any other party or in respect of the Loans.


 










 













Section 3.12.  Taxes.


 


(a)           Taxes
Generally.  All payments by the
Borrower of principal of, and interest on, the Loans and all other Obligations
shall be made free and clear of and without deduction for any Taxes.  If any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:


 


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


 


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


 


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


 


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


 


(c)           Tax
Forms.  Any Foreign Lender that is
entitled to an exemption from or reduction of withholding tax under the
Applicable Law of the jurisdiction in which the Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to
payments hereunder or under any other Loan Document shall deliver to the
Borrower and the Agent, at the time or times prescribed by Applicable Law or
reasonably requested by the Borrower or the Agent, such properly completed and
executed documentation prescribed by Applicable Law as will permit such
payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender or Participant, if
requested by the Borrower or the Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the
Agent as will enable the Borrower or the Agent to determine whether or not such
Lender or Participant is subject to backup withholding or information reporting
requirements.  Without limiting the
generality of the foregoing, if the Borrower is a resident for tax purposes in
the United States of America, any Foreign Lender shall deliver to the Borrower
and the Agent (in such number of copies as shall be requested by the recipient)
on or prior to the date on which such Foreign Lender or Participant becomes a
Lender or Participant, as applicable, under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Agent, but only if such
Foreign Lender or Participant is legally entitled to do so), whichever of the
following is applicable:


 





















 


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


 


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


 


(iii)          in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Internal Revenue 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 Internal Revenue
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Internal
Revenue Code and (y) duly completed copies of Internal Revenue Service
Form W-8BEN (or successor form), or


 


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


 


ARTICLE
IV. YIELD PROTECTION, ETC.


 


Section 4.1.  Additional Costs; Capital Adequacy.


 


(a)           Additional
Costs.  The Borrower shall promptly
pay to the Agent for the account of a Lender from time to time such amounts as
such Lender may determine to be necessary to compensate such Lender for any
costs incurred by such Lender that it determines are attributable to its making
or maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans
hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such Loans or
such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called “Additional Costs”; provided Additional Costs
shall not include Mandatory Costs or amounts payable under Section 4.10.),
resulting from any Regulatory Change that: 
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or any of the other Loan Documents in respect of
any of such Loans or its Commitment (other than Excluded Taxes); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement to the extent utilized in the
determination of Adjusted LIBOR for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender, or any commitment of such Lender (including, without limitation, the Commitment
of such Lender hereunder); or (iii) has or would have the effect of
reducing the rate of return on capital of such Lender to a level below that
which such Lender could have achieved but for such Regulatory Change (taking
into consideration such Lender’s policies with respect to capital adequacy).


 





















 


(b)           Lender’s
Suspension of LIBOR Loans.  Without
limiting the effect of the provisions of the immediately preceding
subsection (a), if, by reason of any Regulatory Change, any Lender either
(i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender that includes deposits by reference to which the interest rate on
LIBOR Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender that includes LIBOR Loans
or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets that it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Agent), the obligation of such
Lender to make or Continue, or to Convert any other Type of Loans into, LIBOR
Loans hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 4.6. shall apply with
respect to Revolving Loans and the provisions of Section 2.2.(c) shall
apply with respect to Alternate Currency Loans).


 


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


 


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


 


 





















 


Section 4.2.  Suspension of LIBOR Loans.


 


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


 


(a)           the
Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining Adjusted LIBOR for such Interest Period,


 


(b)           the
Agent reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lenders
of making or maintaining LIBOR Loans for such Interest Period,


 


(c)           in
the case of any Alternate Currency Loan, a fundamental change has occurred in
the foreign exchange or interbank markets with respect to the applicable
Alternate Currency (including, without limitation, changes in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls), or


 


(d)           in
the case of any Alternate Currency Loan, the Agent or the Agent’s Correspondent
has reasonably determined that it has become materially impractical for the
Alternate Currency Lender to make Alternate Currency Loans,


 


then the Agent shall give
the Borrower and each Lender prompt notice thereof and, so long as such
condition remains in effect, (x) in the case of clauses (a) and (b),
the Lenders shall be under no obligation to, and shall not, make additional
LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the
Borrower shall, on the last day of each current Interest Period for each
outstanding LIBOR Loan, either repay such Loan or Convert such Loan into a Base
Rate Loan and (y) in the case of clauses (c) and (d), the Alternate
Currency Lender shall be under no obligation to, and shall not, make any additional
Alternate Currency Loans or Continue any Alternate Currency Loans.


 


Section 4.3.  Illegality.


 


Notwithstanding any other
provision of this Agreement, if it becomes unlawful for any Lender  to honor its obligation to make or maintain
LIBOR Loans hereunder, then such Lender shall promptly notify the Borrower
thereof (with a copy to the Agent) and such Lender’s obligation to make or
Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR
Loans (in which case the provisions of Section 4.6. shall apply with
respect to Revolving Loans and the provisions of Section 2.2.(c) shall
apply with respect to Alternate Currency Loans).


 


Section 4.4.  Compensation.


 


The Borrower shall pay to
the Agent for the account of each Lender, upon the request of such Lender
through the Agent, such amount or amounts as shall be sufficient (in the
reasonable


 





















 


opinion of such Lender) to compensate it for any loss, cost (including
any foreign exchange costs) or expense that such Lender determines is
attributable to:


 


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


 


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


 


 


Upon the Borrower’s request, any Lender 
requesting compensation under this Section shall provide the Borrower
with a statement setting forth the basis for requesting such compensation and
the method for determining the amount thereof. 
Absent manifest error, determinations by any Lender in any such
statement shall be conclusive, provided that such determinations are made on a
reasonable basis and in good faith.


 


Section 4.5.  Affected Lenders.


 


If (a) a Lender requests
compensation pursuant to Section 3.12. or 4.1., and the Requisite Lenders
are not also doing the same, or (b) the obligation of any Lender to make LIBOR
Loans or to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be
suspended pursuant to Section 4.1.(b) or 4.3. but the obligation of the
Requisite Lenders shall not have been suspended under such Sections, then, so
long as there does not then exist any Default or Event of Default, the Borrower
may either (i) demand that such Lender (the “Affected Lender”), and upon
such demand the Affected Lender shall promptly, assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of
Section 12.5.(d) for a purchase price equal to the aggregate principal
balance of Loans then owing to the Affected Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to the Affected Lender, or
(ii) pay to the Affected Lender the aggregate principal balance of Loans
then owing to the Affected Lender plus any accrued but unpaid interest thereon
and accrued but unpaid fees owing to the Affected Lender, whereupon the
Commitment of the Affected Lender shall be terminated and the Affected Lender
shall no longer be a party hereto or have any rights or obligations hereunder
or under any of the other Loan Documents. 
Each of the Agent and the Affected Lender shall reasonably cooperate in
effectuating the replacement of such Affected Lender under this Section, but at
no time shall the Agent, such Affected Lender nor any other Lender be obligated
in any way whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee.  The exercise by
the Borrower of its rights under this Section shall be at the Borrower’s sole
cost and expense and at no cost or expense to the Agent, the Affected Lender or
any of the other Lenders.  The terms of
this Section shall not in any way limit the Borrower’s obligation to pay to any
Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 4.1.  The
provisions of this Section shall not apply to the Alternate Currency Lender.


 





















 


Section 4.6.  Treatment of Affected Loans.


 


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


 


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


 


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


 


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


 


Section 4.7.  Change of Lending Office.


 


Each Lender agrees that
it will use reasonable efforts to designate an alternate Lending Office with
respect to any of its Loans affected by the matters or circumstances described
in Sections 3.12., 4.1. or 4.3. to reduce the liability of the Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender in its sole
discretion, except that such Lender shall have no obligation to designate a
Lending Office located in the United States of America.


 


Section 4.8.  Assumptions Concerning Funding of LIBOR
Loans.


 


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


 





















 


sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.


 


Section 4.9.  Redenominations.


 


(a)           Redenomination
of Loans.  Subject to
Section 1.3., any Loan to be denominated in the Currency of a
Participating Member State shall be made in the Euro.


 


(b)           Redenomination
of Obligations.  Subject to
Section 1.3., any obligation of any party under this Agreement or any other
Loan Document which has been denominated in the Currency of a Participating
Member State shall be redenominated into the Euro.


 


(c)           Further
Assurances.  The terms and provisions
of this Agreement will be subject to such reasonable changes of construction as
determined by the Agent or the Agent’s Correspondent to reflect the
implementation of the EMU in any Participating Member State or any market
conventions relating to the fixing and/or calculation of interest being changed
or replaced and to reflect market practice at that time, and subject thereto,
to put the Agent, the Lenders and the Borrower in the same position, so far as
possible, that they would have been if such implementation had not occurred. In
connection therewith, the Borrower agrees, at the request of the Agent, at the
time of or at any time following the implementation of the EMU in any
Participating Member State or any market conventions relating to the fixing
and/or calculation of interest being changed or replaced, to enter into an agreement
amending this Agreement in such manner as the Agent shall reasonably request.


 


Section 4.10.  Exchange Indemnification.


 


The Borrower
shall, upon demand from the Alternate Currency Lender, pay to the Alternate
Currency Lender, the amount of (a) any loss or cost or increased cost
incurred by the Alternate Currency Lender, (b) any reduction in any amount
payable to or in the effective return on the capital to the Alternate Currency
Lender, (c) any interest or any other return, including principal, foregone
by the Alternate Currency Lender as a result of the introduction of, change
over to or operation of the Euro, or (d) any currency exchange loss, in
any such case that the Alternate Currency Lender sustains as a result of any
payment being made by the Borrower in a currency other than that originally
extended to the Borrower. A certificate of the Alternate Currency Lender
setting forth the basis for determining such additional amount or amounts
necessary to compensate the Alternate Currency Lender shall be conclusively
presumed to be correct absent manifest error.


 


Section 4.11.  Regulatory Limitation.


 


If as a result of increases in the value of Alternate
Currencies against the Dollar or for any other reason, the obligation of the
Alternate Currency Lender to make Alternate Currency Loans (taking into account
the amount of the Obligations and all other indebtedness required to be
aggregated under 12 U.S.C.A. §84, as amended, the regulations promulgated
thereunder and any other Applicable Law) is determined by the Alternate
Currency Lender to exceed its then applicable legal lending limit under 12
U.S.C.A. §84, as amended, and the regulations promulgated thereunder, or any
other Applicable Law, the amount of Alternate Currency 


 





















 


Commitment shall
immediately be reduced to the maximum amount which the Alternate Currency
Lender may legally advance (as determined by the Alternate Currency Lender),
and, to the extent necessary under such laws and regulations (as determined by
the Alternate Currency Lender, with respect to the applicability of such laws
and regulations to itself), the Borrower shall reduce, or cause to be reduced,
complying to the extent practicable with the remaining provisions hereof, the
Obligations outstanding hereunder by an amount sufficient to comply with such
maximum amounts.


 


ARTICLE
V. CONDITIONS PRECEDENT


 


Section 5.1.  Initial Conditions Precedent.


 


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


 


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


 


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


 


(ii)           Revolving
Notes executed by the Borrower, payable to each Lender and complying with the
applicable provisions of Section 2.11., the Swingline Note executed by the
Borrower and the Alternate Currency Note executed by the Borrower;


 


(iii)          The
Guaranty executed by each Guarantor existing as of the Effective Date;


 


(iv)          An opinion
of Sullivan & Worcester LLP, counsel to the Loan Parties, and opinion of
Venable LLP, special Maryland counsel to the Loan Parties, in each case
addressed to the Agent and the Lenders and covering such matters as are
customary for financings of the type contemplated by the Loan Documents and
such other matters as the Agent may reasonably request;


 


(v)           The
declaration of trust of the Borrower certified as of a recent date by the
Department of Assessments and Taxation of the State of Maryland;


 


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


 


(vii)         A
certificate of incumbency signed by the Secretary or Assistant Secretary of the
Borrower with respect to each of the officers of the Borrower authorized to
execute


 





















 


and deliver the Loan
Documents to which the Borrower is a party and the officers of the Borrower
then authorized to deliver Notices of Borrowing, Notices of Swingline
Borrowing, Notices of Alternate Currency Borrowing, Notices of Continuation and
Notices of Conversion and to request the issuance of Letters of Credit;


 


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


 


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


 


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


 


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


 


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


 


(xiii)         The
Fees then due and payable under Section 3.6., and any other Fees payable
to the Agent, the Titled Agents and the Lenders on or prior to the Effective
Date;


 


(xiv)        A
Compliance Certificate calculated as of September 30, 2004; and


 


(xv)         Such
other documents, agreements and instruments as the Agent on behalf of the
Lenders may reasonably request; and


 


(b)           In
the good faith judgment of the Agent and the Lenders:


 





















 


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


 


(ii)           No
litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be
expected to (1) result in a Material Adverse Effect or (2) restrain or enjoin,
impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of the Borrower or any other Loan Party to fulfill
its obligations under the Loan Documents to which it is a party;


 


(iii)          The
Borrower and its Subsidiaries shall have received all approvals, consents and
waivers, and shall have made or given all necessary filings and notices as
shall be required to consummate the transactions contemplated hereby without
the occurrence of any default under, conflict with or violation of (1) any
Applicable Law or (2) any agreement, document or instrument to which the
Borrower or any other Loan Party is a party or by which any of them or their
respective properties is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which would not reasonably
be likely to (A) have a Material Adverse Effect, or (B) restrain or
enjoin, impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of the Borrower or any other Loan Party to fulfill
its obligations under the Loan Documents to which it is a party; and


 


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


 


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


 


The obligations of the
Lenders to make any Loans, and of the Agent to issue Letters of Credit, are all
subject to the further condition precedent that: (a) no Default or Event
of Default shall have occurred and be continuing as of the date of the making
of such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct on
and as of the date of the making of such Loan or date of issuance of such
Letter of Credit with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct on and as of such earlier date) and
except for changes in factual circumstances specifically and expressly
permitted hereunder and (c) in the case of the borrowing of Loans, the
Agent shall have received a timely Notice of Borrowing, Notice of Swingline
Borrowing or Notice of Alternate Currency Borrowing, as the case may be.  Each Credit Event shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of the giving of notice relating to such Credit Event and,


 





















 


unless the Borrower otherwise notifies the Agent prior to the date of
such Credit Event, as of the date of the occurrence of such Credit Event).  In addition, if such Credit Event is the
making of a Loan or the issuance of a Letter of Credit, the Borrower shall be
deemed to have represented to the Agent and the Lenders at the time such Loan
is made or Letter of Credit is issued that all conditions to the occurrence of
such Credit Event contained in this Article V. have been satisfied.


 


Section 5.3.  Conditions as Covenants.


 


If the Lenders make any
Loans, or the Agent issues a Letter of Credit, prior to the satisfaction of all
conditions precedent set forth in Sections 5.1. and 5.2., the Borrower
shall nevertheless cause such condition or conditions to be satisfied within 5
Business Days after the date of the making of such Loans or the issuance of
such Letter of Credit.


 


ARTICLE
VI. REPRESENTATIONS AND WARRANTIES


 


Section 6.1.  Representations and Warranties.


 


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


 


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


 


(b)           Ownership
Structure.  As of the Agreement Date
Part I of Schedule 6.1.(b) is a complete and correct list of all
Subsidiaries of the Borrower setting forth for each such Subsidiary,
(i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding any Equity Interests in such Subsidiary, (iii) the nature
of the Equity Interests held by each such Person, (iv) the percentage of
ownership of such Subsidiary represented by such Equity Interests and (v) whether
such Subsidiary is a Material Subsidiary and/or an Excluded Subsidiary.  The parties hereto acknowledge that as of the
Agreement Date, neither HPT nor SNH is a Subsidiary.  Except as disclosed in such Schedule, as of
the Agreement Date (i) each of the Borrower and its Subsidiaries owns,
free and clear of all Liens, and has the unencumbered right to vote, all
outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (ii) all of the issued and outstanding capital stock of each
such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders’ or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any


 





















 


class, or partnership or other ownership interests of any type in, any
such Person.  As of the Agreement Date
Part II of Schedule 6.1.(b) correctly sets forth all Unconsolidated
Affiliates of the Borrower, including the correct legal name of such Person,
the type of legal entity which each such Person is, and all Equity Interests in
such Person held directly or indirectly by the Borrower.


 


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


 


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


 


(e)           Compliance
with Law; Governmental Approvals. 
The Borrower, each Subsidiary and each other Loan Party is in compliance
with each Governmental Approval applicable to it and in compliance with all
other Applicable Law (including without limitation, Environmental Laws)
relating to the Borrower, a Subsidiary or such other Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, individually or in the aggregate, cause a Default or Event of
Default or have a Material Adverse Effect.


 


(f)            Title
to Properties; Liens.  As of the
Agreement Date, Part I of Schedule 6.1.(f) sets forth all of the real
property owned or leased by the Borrower, each other Loan Party and each other
Subsidiary.  Each such Person has good,
marketable and legal title to, or a valid leasehold interest in, its respective
assets.  As of the Agreement Date, there
are no Liens against any assets of the Borrower, any Subsidiary or any other
Loan Party except for Permitted Liens.


 





















 


(g)           Existing
Indebtedness.  Schedule 6.1.(g)
is, as of the date set forth in such Schedule, a complete and correct listing
of all (i) Indebtedness of the Borrower and its Subsidiaries, including
without limitation, Guarantees of the Borrower and its Subsidiaries, and
indicating whether such Indebtedness is Secured Indebtedness or Unsecured Indebtedness.  During the period from such date to the
Agreement Date, neither the Borrower nor any Subsidiary incurred any material
Indebtedness except as set forth on such Schedule.  The Borrower and its Subsidiaries have
performed and are in compliance with all of the terms of such Indebtedness and
all instruments and agreements relating thereto, and no default or event of
default, or event or condition which with the giving of notice, the lapse of
time, or both, would constitute such a default or event of default, exists with
respect to any such Indebtedness.


 


(h)           Material
Contracts.  Schedule 6.1.(h) is,
as of the Agreement Date, a true, correct and complete listing of all Material
Contracts.  Each of the Borrower, its
Subsidiaries and the other Loan Parties that is a party to any Material
Contract has performed and is in compliance with all of the terms of such
Material Contract, and no default or event of default, or event or condition
which with the giving of notice, the lapse of time, or both, would constitute
such a default or event of default, exists with respect to any such Material
Contract.


 


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


 


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


 


(k)           Financial
Statements.  The Borrower has
furnished to each Lender copies of (i) the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries for the fiscal year
ending December 31, 2003, and the related audited consolidated statements of
income, shareholders’ equity and cash flow for the fiscal year ending on such
date, with the opinion thereon of Ernst & Young LLP, and (ii) the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the fiscal quarter ending September 30, 2004, and the
related unaudited consolidated statements of income and cash flow of the Borrower
and its consolidated Subsidiaries for the three fiscal quarter period ending on
such date.  Such financial statements
(including in each case related schedules and notes) are complete and correct
and


 





















 


present fairly, in accordance with GAAP consistently applied throughout
the periods involved, the consolidated financial position of the Borrower and
its consolidated Subsidiaries as at their respective dates and the results of
operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).  Neither the Borrower nor any of its
Subsidiaries has on the Agreement Date any material contingent liabilities,
liabilities, liabilities for taxes, unusual or long-term commitments or unrealized
or forward anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said financial statements or except
as set forth on Schedule 6.1.(k).


 


(l)            No
Material Adverse Change.  Since
December 31, 2003, there has been no material adverse change in the
consolidated financial condition, results of operations, business or prospects
of the Borrower and its consolidated Subsidiaries taken as a whole.  Each of the Borrower, its Subsidiaries and
the other Loan Parties is Solvent.


 


(m)          ERISA.  Each member of the ERISA Group is in
compliance with its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance
with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan, except in each case for noncompliances which could
not reasonably be expected to have a Material Adverse Effect.  As of the Agreement Date, no member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.


 


(n)           Not
Plan Assets; No Prohibited Transaction. 
None of the assets of the Borrower, any Subsidiary or any other Loan
Party constitute “plan assets” within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder.  The execution, delivery and performance of
this Agreement and the other Loan Documents, and the borrowing and repayment of
amounts hereunder, do not and will not constitute “prohibited transactions” under
ERISA or the Internal Revenue Code.


 


(o)           Absence
of Defaults.  Neither the Borrower,
any Subsidiary nor any other Loan Party is in default under its articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied, cured or
waived:  (i) which constitutes a
Default or an Event of Default; or (ii) which constitutes, or which with
the passage of time, the giving of notice, a determination of materiality, the
satisfaction of any condition, or any combination of the foregoing, would
constitute, a default or event of default by the Borrower, any Subsidiary or
any other Loan Party under any agreement (other than this Agreement) or
judgment, decree or order to which the Borrower or any Subsidiary or other Loan
Party is a party or by which the Borrower or any Subsidiary or other Loan Party
or any of their respective properties may be bound where such default or event
of default could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 





















 


(p)           Environmental
Laws.  Each of the Borrower, its
Subsidiaries and the other Loan Parties has obtained all Governmental Approvals
which are required under Environmental Laws and is in compliance with all terms
and conditions of such Governmental Approvals which the failure to obtain or to
comply with could reasonably be expected to have a Material Adverse
Effect.  Except for any of the following
matters that could not be reasonably expected to have a Material Adverse
Effect, (i) the Borrower is not aware of, and has not received notice of,
any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower,
its Subsidiaries and each other Loan Party, may interfere with or prevent
compliance or continued compliance with Environmental Laws, or may give rise to
any common-law or legal liability, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing, study, or investigation, based on or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling or the emission, discharge, release or
threatened release into the environment, of any pollutant, contaminant,
chemical, or industrial, toxic, or other Hazardous Material; and (ii) there is
no civil, criminal, or administrative action, suit, demand, claim, hearing,
notice, or demand letter, notice of violation, investigation, or proceeding
pending or, to the Borrower’s knowledge after due inquiry, threatened, against
the Borrower, its Subsidiaries and each other Loan Party relating in any way to
Environmental Laws.


 


(q)           Investment
Company; Public Utility Holding Company. 
Neither the Borrower nor any Subsidiary nor any other Loan Party is
(i) an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
(ii) a “holding company” or a “subsidiary company” of a “holding company”,
or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company”, within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.


 


(r)            Margin
Stock.  Neither the Borrower, any
Subsidiary nor any other Loan Party is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System.


 


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


 


(t)            Intellectual
Property.  Each of the Borrower and
each Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
(collectively, “Intellectual Property”) used in the conduct of its businesses
as now conducted and as contemplated by the Loan Documents, without known
conflict with any patent, license, franchise, trademark, trade secret, trade
name, copyright, or other proprietary right of


 





















 


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


 


(u)           Business.  As of the Agreement Date, the Borrower and
its Subsidiaries are engaged substantially in the business of owning, operating
and developing office and industrial assets, together with other business
activities incidental thereto, as currently in use at the Properties.


 


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


 


(w)          Accuracy
and Completeness of Information.  No
written information, report or other papers or data (excluding financial
projections and other forward looking statements) furnished to the Agent or any
Lender by, on behalf of, or at the direction of, the Borrower, any Subsidiary
or any other Loan Party in connection with or relating in any way to this
Agreement, contained any untrue statement of a fact material to the
creditworthiness of the Borrower, any Subsidiary or any other Loan Party or
omitted to state a material fact necessary in order to make such statements
contained therein, in light of the circumstances under which they were made,
not misleading.  All financial statements
furnished to the Agent or any Lender by, on behalf of, or at the direction of,
the Borrower, any Subsidiary or any other Loan Party in connection with or
relating in any way to this Agreement, present fairly, in accordance with GAAP
consistently applied throughout the periods involved, the financial position of
the Persons involved as at the date thereof and the results of operations for
such periods.  All financial projections
and other forward looking statements prepared by or on behalf of the Borrower,
any Subsidiary or any other Loan Party that have been or may hereafter be made
available to the Agent or any Lender were or will be prepared in good faith
based on reasonable assumptions.  No fact
is known to the Borrower which has had, or may in the future have (so far as
the Borrower can reasonably foresee), a Material Adverse Effect which has not
been set forth in the financial statements referred to in Section 6.1.(k)
or in such information, reports or other papers or data or otherwise disclosed
in writing to the Agent and the Lenders prior to the Effective Date.


 


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


 





















 


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


 


(z)            Foreign
Assets Control.  None of the
Borrower, any Subsidiary or any Affiliate of the Borrower: (i) is a Person
named on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury’s Office of Foreign Assets
Control (the “OFAC”) as published from time to time; or (ii) is
(A) an agency of the government of a country, (B) an organization
controlled by a country, or (C) a Person resident in a country that is
subject to a sanctions program identified on the list maintained by the OFAC
and published from time to time, as such program may be applicable to such
agency, organization or Person; or (iii) derives more than 15% of its
assets or operating income from investments in or transactions with any such
country, agency, organization or Person.


 


Section 6.2.  Survival of Representations and Warranties,
Etc.


 


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


 


ARTICLE
VII. AFFIRMATIVE COVENANTS


 


For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant
to Section 12.6., all of the Lenders) shall otherwise consent in the
manner provided for in Section 12.6., the Borrower shall comply with the
following covenants:


 


Section 7.1.  Preservation of Existence and Similar
Matters.


 


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


 





















 


respective existence, rights, franchises, licenses and privileges in
the jurisdiction of its incorporation or formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.


 


Section 7.2.  Compliance with Applicable Law and Material
Contracts.


 


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


 


Section 7.3.  Maintenance of Property.


 


In addition to the
requirements of any of the other Loan Documents, the Borrower shall, and shall
cause each Subsidiary and other Loan Party to, (a) protect and preserve all of
its material properties, or cause to be protected and preserved, and maintain,
or cause to be maintained, in good repair, working order and condition all
tangible properties, ordinary wear and tear excepted, and (b) make, or
cause to be made, all needed and appropriate repairs, renewals, replacements
and additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.


 


Section 7.4.  Conduct of Business.


 


The Borrower shall at all
times carry on, and cause its Subsidiaries and the other Loan Parties to carry
on, its respective businesses as described in Section 6.1.(u).


 


Section 7.5.  Insurance.


 


In addition to the
requirements of any of the other Loan Documents, the Borrower shall, and shall
cause each Subsidiary and other Loan Party to, maintain, or cause to be
maintained, commercially reasonable insurance with financially sound and reputable
insurance companies and from time to time deliver to the Agent or any Lender
upon its request a detailed list, together with copies of all policies of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby.


 


Section 7.6.  Payment of Taxes and Claims.


 


The Borrower shall, and
shall cause each Subsidiary and other Loan Party to, pay and discharge, or
cause to be paid and discharged, when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of
materialmen, mechanics, carriers, warehousemen and landlords for labor,
materials, supplies and rentals which, if unpaid, might become a Lien on any
properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is


 





















 


being contested in good faith by appropriate proceedings which operate
to suspend the collection thereof and for which adequate reserves have been
established on the books of the Borrower, such Subsidiary or such other Loan
Party, as applicable, in accordance with GAAP.


 


Section 7.7.  Visits and Inspections.


 


The Borrower shall, and
shall cause each Subsidiary and other Loan Party to, permit representatives or
agents of any Lender or the Agent, from time to time after reasonable prior
notice if no Event of Default shall be in existence, as often as may be
reasonably requested, but only during normal business hours and at the expense
of such Lender or the Agent (unless a Default or Event of Default shall be
continuing, in which case the exercise by the Agent or such Lender of its
rights under this Section shall be at the expense of the Borrower), as the case
may be, to: (a) visit and inspect all properties of the Borrower or such
Subsidiary or other Loan Party to the extent any such right to visit or inspect
is within the control of such Person; (b) inspect and make extracts from
their respective books and records, including but not limited to management
letters prepared by independent accountants; and (c) discuss with its
principal officers, and its independent accountants, its business, properties,
condition (financial or otherwise), results of operations and performance.  If requested by the Agent, the Borrower shall
execute an authorization letter addressed to its accountants authorizing the
Agent or any Lender to discuss the financial affairs of the Borrower and any
Subsidiary or any other Loan Party with its accountants.


 


Section 7.8.  Use of Proceeds; Letters of Credit.


 


The Borrower shall use
the proceeds of all Loans and all Letters of Credit for the repayment of
Indebtedness, the acquisition of Properties, working capital and other general
business purposes only.  The Borrower
shall not, and shall not permit any Subsidiary or other Loan Party to, use any
part of such proceeds or Letters of Credit to (a) purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or (b) finance any
operations, investments or activities in, or make any payments to, any country,
agency, organization, or Person described in clause (ii) of
Section 6.1.(z).


 


Section 7.9.  Environmental Matters.


 


The Borrower shall, and
shall cause all of its Subsidiaries and the other Loan Parties to, comply, or
cause to be complied, with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect.  If the Borrower, any Subsidiary or any other
Loan Party shall (a) receive notice that any violation of any
Environmental Law may have been committed or is about to be committed by such
Person, (b) receive notice that any administrative or judicial complaint
or order has been filed or is about to be filed against the Borrower, any
Subsidiary or any other Loan Party alleging violations of any Environmental Law
or requiring the Borrower, any Subsidiary or any other Loan Party to take any
action in connection with the release of Hazardous Materials or
(c) receive any notice from a Governmental Authority or private party
alleging that the Borrower, any Subsidiary or any other Loan Party may be
liable or responsible for costs associated with a response to or


 





















 


cleanup of a release of Hazardous Materials or any damages caused
thereby, and such notices, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, the Borrower shall provide the
Agent and each Lender with a copy of such notice within 30 days after the
receipt thereof by the Borrower, any Subsidiary or any other Loan Party.  The Borrower shall, and shall cause its
Subsidiaries and the other Loan Parties to, take, or cause to be taken,
promptly all actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any Environmental
Laws.


 


Section 7.10.  Books and Records.


 


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


 


Section 7.11.  Further Assurances.


 


The Borrower shall, at
the Borrower’s cost and expense and upon request of the Agent, execute and
deliver, or cause to be executed and delivered, to the Agent such further
instruments, documents and certificates, and do and cause to be done such
further acts that may be reasonably necessary or advisable in the reasonable
opinion of the Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.


 


Section 7.12.  New Subsidiaries/Guarantors.


 


(a)           Requirement
to Become Guarantor.  Within 30 days
of any Person (other than an Excluded Subsidiary) becoming a Material
Subsidiary after the Effective Date, the Borrower shall deliver to the Agent
each of the following items, each in form and substance satisfactory to the
Agent: (a) an Accession Agreement executed by such Material Subsidiary and
(b) the items with respect to such Material Subsidiary that would have
been delivered under Sections 5.1.(a)(iv) and (ix) through (xii) if such
Material Subsidiary had been one on the Effective Date; provided, however,
promptly (and in any event within 5 Business Days) upon any Excluded Subsidiary
ceasing to be subject to the restriction which prevented it from delivering an
Accession Agreement pursuant to this Section, such Subsidiary shall comply with
the provisions of this Section.


 


(b)           Release
of a Guarantor.  The Borrower may
request in writing that the Agent release, and upon receipt of such request the
Agent shall release, a Guarantor from the Guaranty so long as: (i) such
Guarantor meets, or will meet simultaneously with its release from the
Guaranty, all of the provisions of the definition of the term “Excluded
Subsidiary” or has ceased to be, or simultaneously with its release from the
Guaranty will cease to be, a Material Subsidiary; (ii) such Guarantor is not
otherwise required to be a party to the Guaranty under the immediately
preceding subsection (a); (iii) no Default or Event of Default shall then be in
existence or would occur as a result of such release, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1.; and (iv) the Agent shall have received
such written request at least 10 Business Days prior to the requested date of
release.  Delivery by the Borrower to the
Agent of any such request shall constitute a representation by the Borrower
that the matters set forth in the preceding sentence


 


 





















 


(both as of the date of the giving of such request and as of the date
of the effectiveness of such request) are true and correct with respect to such
request.


 


Section 7.13. 
REIT Status.


 


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


 


Section 7.14.  Exchange Listing.


 


The Borrower shall
maintain at least one class of common shares of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or
which is the subject of price quotations in the over-the-counter market as
reported by the National Association of Securities Dealers Automated Quotation
System.


 


ARTICLE
VIII. INFORMATION


 


For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant
to Section 12.6., all of the Lenders) shall otherwise consent in the
manner set forth in Section 12.6., the Borrower shall furnish to each
Lender (or to the Agent if so provided below) at its Lending Office:


 


Section 8.1.  Quarterly Financial Statements.


 


As soon as available and in any event within 45 days
after the close of each of the first, second and third fiscal quarters of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such period and the related unaudited
consolidated statements of income, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries for such period, setting forth in each case in
comparative form the figures as of the end of and for the corresponding periods
of the previous fiscal year, all of which shall be certified by the chief
financial officer or chief accounting officer of the Borrower, in his or her
opinion, to present fairly, in accordance with GAAP then in effect, the
consolidated financial position of the Borrower and its Subsidiaries as at the
date thereof and the results of operations for such period (subject to normal
year-end audit adjustments).  Together
with such financial statements, the Borrower shall deliver reports, in form and
detail satisfactory to the Agent, setting forth: (a) a statement of Funds
From Operations for the fiscal quarter then ending; (b) a listing of
capital expenditures made during the fiscal quarter then ended; and (c) a
listing of all Properties acquired during such fiscal quarter, including the
net operating income of each such Property, acquisition costs and related
mortgage debt, if any.


 


Section 8.2.  Year-End Statements.


 


Within 90 days after the
end of each fiscal year of the Borrower, the audited consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year and the
related audited consolidated statements of income, shareholders’ equity and
cash flows of the Borrower and its Subsidiaries for such fiscal year, setting
forth in comparative form the figures as at the end of and for the previous
fiscal year, all of which shall be certified by (a) the chief financial
officer or chief accounting officer of the Borrower, in his or her opinion, to
present fairly, in


 





















 


accordance with GAAP then in effect, the consolidated financial
position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period and (b) independent certified public
accountants of recognized national standing, whose certificate shall be
unqualified and who shall have authorized the Borrower to deliver such
financial statements and certification thereof to the Agent and the Lenders
pursuant to this Agreement.  Together
with such financial statements, the Borrower shall deliver a report, certified
by the chief financial officer or chief accounting officer of Borrower, in form
and detail reasonably satisfactory to the Agent, setting forth the Net
Operating Income for each Property for such fiscal year.


 


Section 8.3.  Compliance Certificate.


 


At the time financial
statements are furnished pursuant to Sections 8.1. and 8.2., and within 5
Business Days of the Agent’s request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit K (a “Compliance
Certificate”) executed by the chief financial officer or chief accounting
officer of the Borrower: (a) setting forth in reasonable detail as at the
end of such quarterly accounting period, fiscal year, or other fiscal period,
as the case may be, the calculations required to establish whether or not the
Borrower was in compliance with the covenants contained in Sections 9.1.
through 9.3. and 9.6., and (b) stating that, to the best of his or her
knowledge, information and belief after due inquiry, no Default or Event of
Default exists, or, if such is not the case, specifying such Default or Event
of Default and its nature, when it occurred, whether it is continuing and the
steps being taken by the Borrower with respect to such event, condition or
failure.


 


Section 8.4.  Other Information.


 


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


 


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


 


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


 


(d)           ERISA.  If and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC of any “reportable
event” (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or 


 





















 


required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement
which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the chief financial officer of
the Borrower setting forth details as to such occurrence and the action, if
any, which the Borrower or applicable member of the ERISA Group is required or
proposes to take;


 


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


 


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


 


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


 


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


 


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


 





















 


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


 


(k)           Material
Subsidiary.  Prompt notice of any
Person becoming a Material Subsidiary;


 


(l)            Material
Asset Sales.  Prompt notice of the
sale, transfer or other disposition of any material assets of the Borrower, any
Subsidiary or any other Loan Party to any Person other than the Borrower, any
Subsidiary or any other Loan Party;


 


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


 


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


 


ARTICLE
IX. NEGATIVE COVENANTS


 


For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant
to Section 12.6., all of the Lenders) shall otherwise consent in the
manner set forth in Section 12.6., the Borrower shall comply with the
following covenants:


 


Section 9.1.  Financial Covenants.


 


The Borrower shall not
permit:


 


(a)           Leverage
Ratio.  The ratio of (i) Total
Indebtedness to (ii) Total Asset Value, to exceed 0.60 to 1.0 at any time.


 


(b)           Interest
Coverage Ratio.  The ratio of
(i) EBITDA of the Borrower and its Subsidiaries determined on a
consolidated basis for the fiscal quarter of the Borrower most recently ending
to (ii) Interest Expense of the Borrower and its Subsidiaries determined
on a consolidated basis for such period, to be less than 2.0 to 1.0 at any time.


 


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


 


(d)           Secured
Indebtedness.  The ratio of
(i) Secured Indebtedness of the Borrower and its Subsidiaries to
(ii) Total Asset Value, to be greater than 0.35 to 1.00 at any time.


 





















 


(e)           Unencumbered
Leverage Ratio.  The ratio of
(i) Unencumbered Asset Value to (ii) Unsecured Indebtedness, to be
less than 1.670 to 1.00 at any time.


 


(f)            Unencumbered
Interest Coverage Ratio.  The ratio
of (i) Unencumbered Net Operating Income to (ii) Unsecured Debt
Service for the Borrower’s fiscal quarter most recently ending, to be less than
2.0 to 1.0 at any time.


 


(g)           Minimum
Tangible Net Worth.  Tangible Net
Worth at any time to be less than (i) $1,250,000,000 plus (ii) 75% of
the Net Proceeds of all Equity Issuances effected by the Borrower or any
Subsidiary (other than Equity Issuances to the Borrower or any Subsidiary)
after the Agreement Date.


 


(h)           Floating
Rate Debt.  The aggregate principal amount of all outstanding
Floating Rate Debt to exceed at any time an amount equal to the greater of
(i) 25.0% of Total Asset Value and (ii) the sum of (x) the
aggregate amount of the Commitments plus (y) the aggregate principal
balance of loans outstanding under that certain Term Loan Agreement dated as of
February 25, 2004 by and among the Borrower, the financial institutions
from time to time party thereto as “Lenders” and Wachovia Bank, National
Association, as Agent.


 


(i)            Total Assets Owned by Borrower and Guarantors.  The
amount of Total Asset Value directly owned by the Borrower and the Guarantors
to be less than 95.0% of Total Asset Value (excluding the amount of Total Asset
Value, if any, then attributable to Excluded Subsidiaries).


 


Section 9.2.  Indebtedness.


 


The Borrower shall not,
and shall not permit any Subsidiary or any other Loan Party to, create, incur,
assume, or permit or suffer to exist, any Indebtedness other than the
following:


 


(a)           the
Obligations;


 


(b)           Indebtedness
set forth on Schedule 6.1.(g);


 


(c)           intercompany
Indebtedness among the Borrower and its Wholly Owned Subsidiaries; provided,
however, that the obligations of the Borrower and each Guarantor in respect of
such intercompany Indebtedness shall be subordinate to the Obligations; and


 


(d)           any
other Indebtedness of a type not described above in this Section and created,
incurred or assumed after the Agreement Date so long as immediately prior to
the creation, incurring or assumption thereof, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be in
existence, including without limitation, a Default or Event of Default
resulting from a violation of any of the covenants contained in
Section 9.1.


 


Section 9.3. Certain Permitted Investments.


 


The Borrower shall not,
and shall not permit any Subsidiary or any other Loan Party to, make any
Investment in or otherwise own the following items which would cause the
aggregate


 





















 


value of all such holdings of the Borrower and such Subsidiaries
(without duplication) to exceed 40.0% of Total Asset Value at any time:


 


(a)           Investments
in Persons which are not Subsidiaries (including ownership of Indebtedness secured
by real property but excluding the Borrower’s Investments in SNH and HPT);


 


(b)           Developable Property; and


 


(c)           Assets Under Development, measured by the
aggregate Construction Budget for all such Assets Under Development; for
purposes of this subsection, (i) ”Construction Budget” means the fully-budgeted
costs for the acquisition and construction of a given piece of real property
(including without limitation, the cost of acquiring such piece of real
property (except to the extent any portion thereof is Developable Property
included in the immediately preceding subsection (b)), reserves for
construction interest and operating deficits, tenant improvements, leasing
commissions, and infrastructure costs), as reasonably determined by the
Borrower in good faith and (ii) real property under construction to be
(but not yet) acquired by the Borrower or a Subsidiary upon completion of
construction pursuant to a contract in which the seller of such real property
is required to complete construction prior to, and as a condition precedent to,
such acquisition, shall be subject to this subsection.


 


Section 9.4.  Investments Generally.


 


The Borrower shall not,
and shall not permit any Subsidiary or other Loan Party to, directly or
indirectly, acquire, make or purchase any Investment, or permit any Investment
of such Person to be outstanding on and after the Agreement Date, other than
the following:


 


(a)           Investments
in Subsidiaries in existence on the Agreement Date and disclosed on Part I
of Schedule 6.1.(b);


 


(b)           Investments
to acquire Equity Interests of a Subsidiary or any other Person who after
giving effect to such acquisition would be a Subsidiary, so long as in each
case (i) immediately prior to such Investment, and after giving effect
thereto, no Default or Event of Default is or would be in existence and
(ii) if such Subsidiary is (or after giving effect to such Investment
would become) a Material Subsidiary and is not an Excluded Subsidiary, the
terms and conditions set forth in Section 7.12. are satisfied;


 


(c)           Investments
permitted under Section 9.3.;


 


(d)           Investments
in Cash Equivalents;


 


(e)           intercompany
Indebtedness among the Borrower and its Wholly Owned Subsidiaries provided that
such Indebtedness is permitted by the terms of Section 9.2.;


 


(f)            loans
and advances to officers and employees for moving, entertainment, travel and
other similar expenses in the ordinary course of business consistent with past
practices; and


 























 


(g)           any
other Investment so long as immediately prior to making such Investment, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of Section 7.4.


 


Notwithstanding the
foregoing, the Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, acquire, make or purchase any Investment that is an
Equity Interest in HPT or SNH, or permit any such Investment to be outstanding
on and after the Agreement Date, other than the Investments set forth on
Schedule 9.4.


 


Section 9.5.  Liens; Negative Pledges; Other Matters.


 


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


 


(b)           The Borrower shall not, and shall not
permit any Subsidiary or other Loan Party to, enter into, assume or otherwise
be bound by any Negative Pledge except for a Negative Pledge contained in any
agreement (i) evidencing Indebtedness which the Borrower or such Subsidiary
may create, incur, assume, or permit or suffer to exist under
Section 9.2.; (ii) which Indebtedness is secured by a Lien permitted
to exist and (iii) which prohibits the creation of any other Lien on only
the property securing such Indebtedness as of the date such agreement was
entered into;


 


(c)           The
Borrower shall not, and shall not permit any Subsidiary or other Loan Party to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary (other
than an Excluded Subsidiary) to: (i) pay dividends or make any other
distribution on any of such Subsidiary’s capital stock or other equity
interests owned by the Borrower or any Subsidiary; (ii) pay any
Indebtedness owed to the Borrower or any Subsidiary; (iii) make loans or
advances to the Borrower or any Subsidiary; or (iv) transfer any of its
property or assets to the Borrower or any Subsidiary.


 


Section 9.6.  Restricted Payments.


 


The Borrower shall not,
and shall not permit any Subsidiary or other Loan Party to, declare or make any
Restricted Payment; provided, however, that:


 


(a)           the Borrower may (x) declare and
make cash distributions to its common shareholders during any fiscal year in an
aggregate amount not to exceed the greater of (i) 90.0% of Funds From
Operations of the Borrower for such fiscal year or (ii) the amount for the
Borrower to remain in compliance with Section 7.13. and (y) declare
and make Preferred Dividends;


 





















 


(b)           the Borrower may declare and make cash
distributions to its shareholders of capital gains resulting from gains from
certain asset sales to the extent necessary to avoid payment of taxes on such
asset sales imposed under Sections 857(b)(3) and 4981 of the Internal
Revenue Code;


 


(c)           the Borrower may make cash payments
to repurchase outstanding shares of any of its Preferred Stock, common stock or
other similar common Equity Interests;


 


(d)           Subsidiaries may declare and pay
Restricted Payments to the Borrower or any other Subsidiary; and


 


(e)           the Borrower may declare and make
distributions of any extraordinary distributions received by the Borrower in
respect of its Investments in SNH and HPT.


 


Notwithstanding the
foregoing, but subject to the following sentence, if a Default or Event of
Default shall have occurred and be continuing, the Borrower may only declare or
make cash distributions to its shareholders during any fiscal year in an
aggregate amount not to exceed the minimum amount necessary for the Borrower to
remain in compliance with Section 7.13. 
If a Default or Event of Default specified in Section 10.1.(a),
Section 10.1.(f) or Section 10.1.(g) shall have occurred and be
continuing, or if as a result of the occurrence of any other Event of Default
the Obligations have been accelerated pursuant to Section 10.2.(a), the
Borrower shall not, and shall not permit any Subsidiary or other Loan Party to,
make any Restricted Payments to any Person whatsoever other than to the
Borrower or any Subsidiary.


 


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


 


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


 


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


 


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


 


(c)           a Person may merge with and into the
Borrower so long as (i) the Borrower is the survivor of such merger,
(ii) immediately prior to such merger, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be in
existence; and (iii) the Borrower shall have given the Agent and the
Lenders at least 10 Business Days’ prior


 





















 


written notice of such merger (except that such prior notice shall not
be required in the case of the merger of a Subsidiary with and into the
Borrower); and


 


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


 


Section 9.8.  Fiscal Year.


 


The Borrower shall not
change its fiscal year from that in effect as of the Agreement Date.


 


Section 9.9.  Modifications to Advisory Agreement and Other
Material Contracts.


 


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


 


Section 9.10.  Transactions with Affiliates.


 


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


 


Section 9.11.  ERISA Exemptions.


 


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


 


ARTICLE
X. DEFAULT


 


Section 10.1.  Events of Default.


 


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


 





















 


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


 


(b)           Default in Payment of Interest and
Other Obligations.  The Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrower under this Agreement or any other
Loan Document, or any other Loan Party shall fail to pay when due any payment
Obligation owing by such other Loan Party under any Loan Document to which it
is a party, and such failure shall continue for a period of 5 Business
Days.


 


(c)           Default in Performance.  (i) The Borrower shall fail to perform
or observe any term, covenant, condition or agreement contained in
Section 8.4.(h) or in Article IX. or (ii) the Borrower or any
other Loan Party shall fail to perform or observe any term, covenant, condition
or agreement contained in this Agreement or any other Loan Document to which it
is a party and not otherwise mentioned in this Section and such failure shall
continue for a period of 30 days after the earlier of (x) the date
upon which a Responsible Officer of the Borrower or such other Loan Party
obtains knowledge of such failure or (y) the date upon which the Borrower
has received written notice of such failure from the Agent.


 


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


 


(e)           Indebtedness Cross-Default.


 


(i)            The Borrower, any Subsidiary or any
other Loan Party shall fail to pay when due and payable the principal of, or
interest on, any Indebtedness or Subordinated Debt (other than (A) the
Loans and (B) Nonrecourse Indebtedness of Excluded Subsidiaries) having an
aggregate outstanding principal amount of $25,000,000 or more (“Material
Indebtedness”) or any Excluded Subsidiary shall fail to pay when due and
payable the principal of, or interest on, Nonrecourse Indebtedness having an
aggregate outstanding principal amount of $75,000,000 or more; or


 


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


 


(iii)          any other event shall have occurred
and be continuing which, with or without the passage of time, the giving of
notice, or both, would permit any holder or holders of Material Indebtedness,
any trustee or agent acting on behalf of such holder or


 





















 


holders or any other
Person, to accelerate the maturity of any such Material Indebtedness or require
any such Material Indebtedness to be prepaid or repurchased prior to its stated
maturity.


 


(f)            Voluntary Bankruptcy Proceeding.  The Borrower, any other Loan Party or any
Subsidiary (other than (x) an Excluded Subsidiary all Indebtedness of which is
Nonrecourse Indebtedness, (y) a Guarantor that, together with all other
Guarantors then subject to a bankruptcy proceeding or other proceeding or condition
described in this subsection or the immediately following subsection, does not
account for more than $25,000,000 of Total Asset Value, or (z) a
Subsidiary (other than an Excluded Subsidiary all the Indebtedness of which is
Nonrecourse Indebtedness) that, together with all other Subsidiaries then
subject to a bankruptcy proceeding or other proceeding or condition described
in this subsection or the immediately following subsection, does not account
for more than $50,000,000 of Total Asset Value) shall:  (i) commence a voluntary case under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now
or hereafter in effect); (ii) file a petition seeking to take advantage of
any other Applicable Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts;
(iii) consent to, or fail to contest in a timely and appropriate manner,
any petition filed against it in an involuntary case under such bankruptcy laws
or other Applicable Laws or consent to any proceeding or action described in
the immediately following subsection; (iv) apply for or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign;
(v) admit in writing its inability to pay its debts as they become due;
(vi) make a general assignment for the benefit of creditors; (vii) make
a conveyance fraudulent as to creditors under any Applicable Law; or
(viii) take any corporate or partnership action for the purpose of
effecting any of the foregoing.


 


(g)           Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced
against the Borrower, any other Loan Party or any Subsidiary (other than (x) an
Excluded Subsidiary all Indebtedness of which is Nonrecourse Indebtedness, (y)
a Guarantor that, together with all other Guarantors then subject to a
bankruptcy proceeding or other proceeding or condition described in this
subsection or the immediately preceding subsection, does not account for more
than $25,000,000 of Total Asset Value, or (z) a Subsidiary (other than an
Excluded Subsidiary all the Indebtedness of which is Nonrecourse Indebtedness)
that, together with all other Subsidiaries then subject to a bankruptcy
proceeding or other proceeding or condition described in this subsection or the
immediately preceding subsection, does not account for more than $50,000,000 of
Total Asset Value) or any other Loan Party, in any court of competent
jurisdiction seeking:  (i) relief
under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws
(as now or hereafter in effect) or under any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of such Person, or of all or any
substantial part of the assets, domestic or foreign, of such Person, and such
case or proceeding shall continue undismissed or unstayed for a period of
60 consecutive calendar days, or an order granting the remedy or other
relief requested in such case or proceeding against the Borrower, such
Subsidiary or such other Loan


 





















 


Party (including, but not limited to, an order for relief under such
Bankruptcy Code or such other federal bankruptcy laws) shall be entered.


 


(h)           Litigation; Enforceability.  The Borrower or any other Loan Party shall disavow,
revoke or terminate (or attempt to terminate) any Loan Document to which it is
a party or shall otherwise challenge or contest in any action, suit or
proceeding in any court or before any Governmental Authority the validity or
enforceability of this Agreement, any Note or any other Loan Document or this
Agreement, any Note, the Guaranty or any other Loan Document shall cease to be
in full force and effect (except as a result of the express terms thereof).


 


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


 


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


 


(k)           ERISA.  Any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of $10,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer


 





















 


Plans which could cause one or more members of the ERISA Group to incur
a current payment obligation in excess of $10,000,000.


 


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


 


(m)          Change of Control.


 


(i)            Any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) is or becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
will be deemed to have “beneficial ownership” of all securities that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 15% of
the total voting power of the then outstanding voting stock of the Borrower; or


 


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


 


(iii)          at
least 375,000 shares of the outstanding common stock of the Borrower (such
number to be adjusted for any division, reclassification, stock dividend and
any other similar dilutive events) shall cease to be owned beneficially and of
record by (A) Barry M. Portnoy; (B) any of his immediate family
members consisting of his spouse and lineal descendants (whether natural or
adopted), and (C) any corporations, limited liability companies, trusts or
other legal entities which are beneficially owned solely by any of the
foregoing; or


 


(iv)          RMR
shall cease for any reason to act as the sole investment advisor to the
Borrower.


 


Section 10.2.  Remedies Upon Event of Default.


 


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


 


(a)           Acceleration; Termination of
Facilities.


 


(i)            Automatic.  Upon the occurrence of an Event of Default
specified in Sections 10.1.(f) or 10.1.(g), (A)(i) the principal of, and
all accrued interest on, the Loans and the Notes at the time outstanding,
(ii) an amount equal to the Stated Amount of all Letters of Credit
outstanding as of the date of the occurrence of such Event of Default for
deposit into the Collateral Account and (iii) all of the other Obligations
of the Borrower,


 





















 


including, but not
limited to, the other amounts owed to the Lenders, the Swingline Lender and the
Agent under this Agreement, the Notes or any of the other Loan Documents shall
become immediately and automatically due and payable by the Borrower without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) all of the Commitments, the
Swingline Commitment, the Alternate Currency Commitment, the obligation of the
Lenders to make Loans, and the obligation of the Agent to issue Letters of
Credit hereunder, shall all immediately and automatically terminate.


 


(ii)           Optional.  If any other Event of Default shall have
occurred and be continuing, the Agent shall, at the direction of the Requisite
Lenders:  (A) declare (1) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such other Event of
Default for deposit into the Collateral Account and (3) all of the other
Obligations, including, but not limited to, the other amounts owed to the
Lenders and the Agent under this Agreement, the Notes or any of the other Loan
Documents to be forthwith due and payable, whereupon the same shall immediately
become due and payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived by the Borrower and
(B) terminate the Commitments, the Swingline Commitment, the Alternate
Currency Commitment, the obligation of the Lenders to make Loans hereunder and
the obligation of the Agent to issue Letters of Credit hereunder.


 


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


 


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


 


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


 


Section 10.3.  Remedies Upon Default.


 


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


 


Section 10.4.  Allocation of Proceeds.


 


If an Event of Default
shall have occurred and be continuing and maturity of any of the Obligations
has been accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts


 





















 


payable by the Borrower hereunder or thereunder, shall be applied in
the following order and priority:


 


(a)           amounts due to the Agent and the
Lenders in respect of fees and expenses due under Section 12.2.;


 


(b)           payments of interest on Swingline
Loans;


 


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


 


(d)           payments of principal of Swingline
Loans;


 


(e)           payments of principal of all other
Loans and Reimbursement Obligations, to be applied for the ratable benefit of
the Lenders;


 


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


 


(g)           amounts due the Agent and the Lenders
pursuant to Sections 11.7. and 12.9.;


 


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


 


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


 


Section 10.5.  Collateral Account.


 


(a)           As collateral security for the prompt
payment in full when due of all Letter of Credit Liabilities and the other
Obligations, the Borrower hereby pledges and grants to the Agent, for the
ratable benefit of the Agent and the Lenders as provided herein, a security
interest in all of its right, title and interest in and to the Collateral
Account and the balances from time to time in the Collateral Account (including
the investments and reinvestments therein provided for below).  The balances from time to time in the
Collateral Account shall not constitute payment of any Letter of Credit Liabilities
until applied by the Agent as provided herein. 
Anything in this Agreement to the contrary notwithstanding, funds held
in the Collateral Account shall be subject to withdrawal only as provided in
this Section and in Section 2.14.


 


(b)           Amounts on deposit in the Collateral
Account shall be invested and reinvested by the Agent in such Cash Equivalents
as the Agent shall determine in its sole discretion.  All such investments and reinvestments shall
be held in the name of and be under the sole dominion and control of the Agent
for the ratable benefit of the Lenders. 
The Agent shall exercise reasonable care in the custody and preservation
of any funds held in the Collateral Account and shall be deemed to have
exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords other funds deposited with the
Agent, it being understood that


 





















 


the Agent shall not have any responsibility for taking any necessary
steps to preserve rights against any parties with respect to any funds held in
the Collateral Account.


 


(c)           If a drawing pursuant to any Letter
of Credit occurs on or prior to the expiration date of such Letter of Credit,
the Borrower and the Lenders authorize the Agent to use the monies deposited in
the Collateral Account and proceeds thereof to make payment to the beneficiary
with respect to such drawing or the payee with respect to such presentment.


 


(d)           If an Event of Default exists, the
Requisite Lenders may, in their discretion, at any time and from time to time,
instruct the Agent to liquidate any such investments and reinvestments and
apply proceeds thereof to the Obligations in accordance with Section 10.4.


 


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


 


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


 


Section 10.6.  Performance by Agent.


 


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


 


Section 10.7.  Rights Cumulative.


 


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


 





















 


ARTICLE
XI. THE AGENT


 


Section 11.1.  Authorization and Action.


 


Each
Lender hereby appoints and authorizes the Agent to take such action as
contractual representative on such Lender’s behalf and to exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto.  Not in
limitation of the foregoing, each Lender authorizes and directs the Agent to
enter into the Loan Documents for the benefit of the Lenders.  Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. 
Nothing herein shall be construed to deem the Agent a trustee or
fiduciary for any Lender nor to impose on the Agent duties or obligations other
than those expressly provided for herein. 
At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents.  The Agent will also furnish to any Lender,
upon the request of such Lender, a copy of any certificate or notice furnished
to the Agent by the Borrower, any Loan Party or any other Affiliate of the
Borrower, pursuant to this Agreement or any other Loan Document not already
delivered to such Lender pursuant to the terms of this Agreement or any such
other Loan Document.  As to any matters
not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of any of the Obligations), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the Requisite
Lenders (or all of the Lenders if explicitly required under any other provision
of this Agreement), and such instructions shall be binding upon all Lenders and
all holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law.  Not in limitation of the foregoing, the Agent
shall not exercise any right or remedy it or the Lenders may have under any
Loan Document upon the occurrence of a Default or an Event of Default unless
the Requisite Lenders have so directed the Agent to exercise such right or
remedy.


 


Section 11.2.  Agent’s Reliance, Etc.


 


Notwithstanding any other
provisions of this Agreement or any other Loan Documents, neither the Agent nor
any of its directors, officers, agents, employees or counsel shall be liable
for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final, non-appealable judgment.  Without limiting the generality of the
foregoing, the Agent: (a) may treat the payee of any Note as the holder
thereof until the Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Agent;
(b) may consult with legal counsel (including its own counsel or counsel
for the Borrower or any other Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any


 





















 


action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Loan Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or
conditions of any of this Agreement or any other Loan Document or the
satisfaction of any conditions precedent under this Agreement or any Loan
Document on the part of the Borrower or other Persons (except for the delivery
to it of any certificate or document specifically required to be delivered to
it pursuant to Section 5.1.) or inspect the property, books or records of
the Borrower or any other Person; (e) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other
instrument or document furnished pursuant thereto or any collateral covered
thereby or the perfection or priority of any Lien in favor of the Agent on
behalf of the Lenders in any such collateral; and (f) shall incur no liability
under or in respect of this Agreement or any other Loan Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be
by telephone or telecopy) believed by it to be genuine and signed, sent or
given by the proper party or parties.


 


Section 11.3.  Notice of Defaults.


 


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


 


Section 11.4.  Wachovia as Lender.


 


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


 





















 


Section 11.5. 
Approvals of Lenders.


 


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


 


Section 11.6.  Lender Credit Decision, Etc.


 


Each Lender expressly
acknowledges and agrees that neither the Agent nor any of its officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates
has made any representations or warranties as to the financial condition,
operations, creditworthiness, solvency or other information concerning the
business or affairs of the Borrower, any other Loan Party, any Subsidiary or
any other Person to such Lender and that no act by the Agent hereafter taken,
including any review of the affairs of the Borrower, any other Loan Party or
any other Subsidiary, shall be deemed to constitute any such representation or
warranty by the Agent to any Lender. 
Each Lender acknowledges that it has made its own credit and legal analysis
and decision to enter into this Agreement and the transactions contemplated
hereby, independently and without reliance upon the Agent, any other Lender or
counsel to the Agent, or any of their respective officers, directors, employees
and agents, and based on the financial statements of the Borrower, the
Subsidiaries or any other Affiliate thereof, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the Loan
Parties, the Subsidiaries and other Persons, its review of the Loan Documents,
the legal opinions required to be delivered to it hereunder, the advice of its
own counsel and such other documents and information as it has deemed
appropriate.  Each Lender also
acknowledges that it will, independently and without reliance upon the Agent,
any other Lender or counsel to the Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents
and information as it shall deem appropriate at the time, continue to make its
own decisions in taking or not taking action under the Loan Documents.  Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent under this Agreement or any of the other Loan Documents, the Agent
shall have no duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, financial and
other condition or creditworthiness of the Borrower, any other Loan Party or
any other Affiliate thereof which may come into possession of the Agent, or any
of its officers, directors, employees, agents, attorneys-in-fact or other
affiliates.


 





















 


Each Lender acknowledges that the Agent’s legal counsel in connection
with the transactions contemplated by this Agreement is only acting as counsel
to the Agent and is not acting as counsel to such Lender.


 


Section 11.7.  Indemnification of Agent.


 


Each Lender agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) pro rata in accordance with
such Lender’s respective Commitment Percentage, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, reasonable out-of-pocket costs and expenses, or disbursements of any
kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against the Agent (in its capacity as Agent but not as a Lender) in
any way relating to or arising out of the Loan Documents, any transaction
contemplated hereby or thereby or any action taken or omitted by the Agent
under the Loan Documents (collectively, “Indemnifiable Amounts”); provided,
however, that no Lender shall be liable for any portion of such Indemnifiable
Amounts to the extent resulting from the Agent’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final,
non-appealable judgment or if the Agent fails to follow the written direction
of the Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Agent following the advice of
counsel to the Agent of which advice the Lenders have received notice.  Without limiting the generality of the
foregoing but subject to the preceding proviso, each Lender agrees to reimburse
the Agent (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees of the counsel(s)
of the Agent’s own choosing) incurred by the Agent in connection with the
preparation, negotiation, execution, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any “lender liability” suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent, and/or the Lenders arising under any Environmental
Laws.  Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Agent notwithstanding any claim or assertion that the Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Agent that the
Agent will reimburse the Lenders if it is actually and finally determined by a
court of competent jurisdiction that the Agent is not so entitled to
indemnification.  The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder or under the other Loan Documents and the termination of this
Agreement.  If the Borrower shall
reimburse the Agent for any Indemnifiable Amount following payment by any
Lender to the Agent in respect of such Indemnifiable Amount pursuant to this
Section, the Agent shall share such reimbursement on a ratable basis with each
Lender making any such payment.


 


Section 11.8.  Successor Agent.


 


The Agent may resign at
any time as Agent under the Loan Documents by giving written notice thereof to
the Lenders and the Borrower.  The Agent
may be removed as Agent under the Loan Documents for good cause by all of the
Lenders (other than the Lender then acting as Agent) upon 30-days’ prior
written notice to the Agent.  Upon any
such resignation or removal,


 





















 


the Requisite Lenders (other than the Lender then acting as Agent, in
the case of the removal of the Agent under the immediately preceding sentence)
shall have the right to appoint a successor Agent which appointment shall,
provided no Default or Event of Default exists, be subject to the Borrower’s
approval, which approval shall not be unreasonably withheld or delayed (except
that the Borrower shall, in all events, be deemed to have approved each Lender
and each of their respective affiliates as a successor Agent).  If no successor Agent shall have been so
appointed in accordance with the immediately preceding sentence, and shall have
accepted such appointment, within 30 days after the resigning Agent’s giving of
notice of resignation or the Lenders’ removal of the resigning Agent, then the
resigning or removed Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender, if any Lender shall be willing to serve, and
otherwise shall be a commercial bank having total combined assets of at least
$50,000,000,000.  Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent, and the retiring or
removed Agent shall be discharged from its duties and obligations under the
Loan Documents.  Such successor Agent
shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or shall make other
arrangements satisfactory to the current Agent, in either case, to assume
effectively the obligations of the current Agent with respect to such Letters
of Credit.  After any Agent’s resignation
or removal hereunder as Agent, the provisions of this Article XI. shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under the Loan Documents.


 


Section 11.9. 
Titled Agents.


 


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


 


ARTICLE
XII. MISCELLANEOUS


 


Section 12.1.  Notices.


 


Unless otherwise provided
herein, communications provided for hereunder shall be in writing and shall be
mailed, telecopied or delivered as follows:


 





















 


If to the Borrower:


 


HRPT
Properties Trust


400 Centre Street


Newton,
Massachusetts  02458


Attention:  Treasurer


Telecopy Number:               (617) 332-2261


Telephone Number:             (617) 332-3990


 


If to the Agent:


 


Wachovia Bank, National
Association


301 S. College Street,
NC0172


Charlotte, North Carolina
28288


Attention: David M.
Blackman


Telecopy Number:               (704) 383-6205


Telephone Number:             (704)
374-6272


 


If to the Alternate
Currency Lender:


 


Wachovia Bank, National
Association, London Branch


3 Bishopsgate


London 3C2N 3AB


Attention: Ms. Maureen
Hart


Telecopy Number:               +44 (0) 207 929 4645


Telephone Number:             +44
(0) 207 956 4309


 


If to a Lender:


 


To such Lender’s address
or telecopy number, as applicable, set forth on its signature page hereto or in
the applicable Assignment and Acceptance Agreement.


 


or, as to each party at
such other address as shall be designated by such party in a written notice to
the other parties delivered in compliance with this Section.  All such notices and other communications
shall be effective (i) if mailed, when received; (ii) if telecopied,
when transmitted; or (iii) if hand delivered or sent by overnight courier,
when delivered.  Notwithstanding the
immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually
received.  Neither the Agent nor any
Lender shall incur any liability to the Borrower (nor shall the Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to in
this Agreement which the Agent or such Lender, as the case may be, believes in
good faith to have been given by a Person authorized to deliver such notice or
for otherwise acting in good faith hereunder.


 





















 


Section 12.2.  Expenses.


 


The Borrower agrees
(a) to pay or reimburse the Agent for all of its reasonable out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement or modification to, any of the Loan
Documents (including due diligence expenses and travel expenses relating to
closing), and the consummation of the transactions contemplated thereby,
including the reasonable fees and disbursements of counsel to the Agent and
costs and expenses in connection with the use of IntraLinks, Inc. or other
similar information transmission systems in connection with the Loan Documents,
(b) to pay or reimburse the Agent and the Lenders for all their reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of
in-house counsel) and any payments in indemnification or otherwise payable by
the Lenders to the Agent pursuant to the Loan Documents, (c) to pay, and
indemnify and hold harmless the Agent, and the Lenders from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to
the extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred
in connection with any bankruptcy or other proceeding of the type described in
Sections 10.1.(f) or 10.1.(g), including the reasonable fees and
disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding.  If the Borrower shall fail to pay any amounts
required to be paid by it pursuant to this Section, the Agent and/or the
Lenders may pay such amounts on behalf of the Borrower and either deem the same
to be Loans outstanding hereunder or otherwise Obligations owing hereunder.


 


Section 12.3.  Setoff.


 


Subject to
Section 3.3. and in addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, the Agent, each
Lender and each Participant is hereby authorized by the Borrower, at any time
or from time to time during the continuance of an Event of Default, without
prior notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured, and in whatever
Currency) and any other indebtedness at any time held or owing by the Agent,
such Lender or any affiliate of the Agent or such Lender, to or for the credit
or the account of the Borrower against and on account of any of the
Obligations, irrespective of whether or not any or all of the Loans and all
other Obligations have been declared to be, or have otherwise become, due and
payable as permitted by Section 10.2., and although such obligations shall
be contingent or unmatured.  Promptly
following any such set-off the Agent shall notify the Borrower thereof


 





















 


and of the application of such set-off, provided that the failure to
give such notice shall not invalidate such set-off.


 


Section 12.4.  Litigation; Jurisdiction; Other Matters;
Waivers.


 


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


 


(b)           EACH OF THE BORROWER, THE AGENT AND
EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN
NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF
CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM
OR THEREFROM.  THE BORROWER AND EACH OF
THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES.  EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN
AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION
SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY
LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED
IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


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


 





















 


Section 12.5.  Successors and Assigns.


 


(a)           The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders and any such assignment
or other transfer to which all of the Lenders have not so consented shall be
null and void.


 


(b)           Any Lender may make, carry or
transfer Loans at, to or for the account of any of its branch offices or the
office of an affiliate of such Lender except to the extent such transfer would
result in increased costs to the Borrower.


 


(c)           Any Lender may at any time grant to
one or more banks or other financial institutions (each a “Participant”)
participating interests in its Commitment or the Obligations owing to such
Lender; provided, however, (i) any such participating interest must be for
a constant and not a varying percentage interest, and (ii) after giving
effect to any such participation by a Lender, the amount of its Commitment, or
if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in which it has not granted any participating
interests must be equal to at least $5,000,000. 
Except as otherwise provided in Section 12.3., no Participant shall
have any rights or benefits under this Agreement or any other Loan
Document.  A Participant shall not be
entitled to receive any greater payment under Section 3.12. than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.  A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.12. unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower and the Agent, to comply with Section 3.12.(c) as
though it were a Lender.  In the event of
any such grant by a Lender of a participating interest to a Participant, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided, however, such Lender may agree with the
Participant that it will not, without the consent of the Participant, agree to
(i) increase, or extend the term or extend the time or waive any
requirement for the reduction or termination of, such Lender’s Commitment,
(ii) extend the date fixed for the payment of principal of or interest on
the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which
interest is payable thereon or (v) release any Guarantor (except as
otherwise permitted under Section 7.12.(b)).  An assignment or other transfer which is not
permitted by subsection (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (c). 
Upon request from the Agent, a Lender shall notify the Agent and the
Borrower of the sale of any participation hereunder and, if requested by the
Agent, certify to the Agent that such participation is permitted hereunder.


 





















 


(d)           Any
Lender may with the prior written consent of the Agent and, so long as no
Default or Event of Default shall have occurred and be continuing, the Borrower
(which consent, in each case, shall not be unreasonably withheld), assign to
one or more Eligible Assignees (each an “Assignee”) all or a portion of its
Commitment and its other rights and obligations under this Agreement and the
Notes; provided, however, (i) no such consent by the Borrower or the Agent
shall be required in the case of any assignment to another Lender;
(ii) any partial assignment shall be in an amount at least equal to $5,000,000
and integral multiples of $1,000,000 in excess thereof and after giving effect
to such assignment the assigning Lender retains a Commitment, or if the
Commitments have been terminated, holds Notes having an aggregate outstanding
principal balance, of at least $5,000,000 and integral multiples of $1,000,000
in excess thereof; and (iii) each such assignment shall be effected by
means of an Assignment and Acceptance Agreement.  Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this Agreement
as of the effective date of the Assignment and Acceptance Agreement and shall
have all the rights and obligations of a Lender with a Commitment as set forth
in such Assignment and Acceptance Agreement (in addition to any Commitment
previously held by it as a Lender), and the transferor Lender shall be released
from its obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required.  Upon the consummation of any assignment
pursuant to this subsection (d), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that new Notes are issued to
the Assignee and such transferor Lender, as appropriate.  In connection with any such assignment, the
transferor Lender shall pay to the Agent an administrative fee for processing
such assignment in the amount of $3,500; provided, however, an Affected Lender
assigning its Commitment pursuant to Section 4.5. shall not be required to
pay such fee in connection with such assignment.


 


(e)           The Agent shall maintain at the
Principal Office a copy of each Assignment and Acceptance Agreement delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of each Lender from time to time
(the “Register”).  The Agent shall give
each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. 
The Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement.  The Register and copies of
each Assignment and Acceptance Agreement shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. 
Upon its receipt of an Assignment and Acceptance Agreement executed by
an assigning Lender, together with each Note subject to such assignment, the
Agent shall, if such Assignment and Acceptance Agreement has been completed and
if the Agent receives the processing and recording fee described in subsection
(d) above, (i) accept such Assignment and Acceptance Agreement,
(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.


 


(f)            In addition to the assignments and
participations permitted under the foregoing provisions of this Section, any
Lender may assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A and
any


 





















 


Operating Circular issued by such Federal Reserve Bank, and such Loans
and Notes shall be fully transferable as provided therein.  No such assignment shall release the
assigning Lender from its obligations hereunder.


 


(g)           A Lender may furnish any information
concerning the Borrower, any other Loan Party or any of their respective
Subsidiaries in the possession of such Lender from time to time to Assignees
and Participants (including prospective Assignees and Participants) subject to
compliance with Section 12.8.


 


(h)           Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower, any other Loan Party or any of their
respective Affiliates or Subsidiaries.


 


(i)            Each Lender agrees that, without the
prior written consent of the Borrower and the Agent, it will not make any
assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under the Securities Act or any other securities laws of the United States
of America or of any other jurisdiction.


 


Section 12.6.  Amendments.


 


Except as otherwise
expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement or any other Loan Document to be given by the
Lenders may be given, and any term of this Agreement or of any other Loan
Document may be amended, and the performance or observance by the Borrower or
any other Loan Party or any Subsidiary of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders (and, in the case of an amendment to any Loan Document, the
written consent of each Loan Party a party thereto).  Notwithstanding the foregoing, without the
prior written consent of each Lender adversely affected thereby, no amendment,
waiver or consent shall do any of the following: (i) increase the
Commitments of the Lenders (except as contemplated by Section 2.16.) or
subject the Lenders to any additional obligations; (ii) reduce the
principal of, or interest rates that have accrued or that will be charged on
the outstanding principal amount of, any Loans or Fees or other Obligations;
(iii) reduce the amount of any Fees payable hereunder; (iv) postpone
any date fixed for any payment of any principal of, or interest on, any Loans
or any Fees or other Obligations, or extend the expiration date of any Letter
of Credit beyond the Termination Date; (v) change the Commitment
Percentages (except as a result of any increase in the aggregate amount of the
Commitments contemplated by Section 2.16., 3.11.(b) or 4.5.) or amend or
otherwise modify the provisions of Section 3.2.; (vi) amend the
definition of “Unencumbered Asset Value” (or any of the definitions used in
such definition or the percentages or rates used in the calculation thereof);
(vii) modify the definition of the term “Requisite Lenders” or modify in
any other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section if such modification
would have such effect; (viii) release any Guarantor from its obligations
under the Guaranty (except as otherwise permitted under Section 7.12.(b));
(ix) or increase the number of Interest Periods for


 





















 


LIBOR Loans under Section 2.6.; or (x) amend or otherwise
modify the provisions of Section 2.15. 
In addition, no amendment, waiver or consent unless in writing and
signed by the Agent, in addition to the Lenders required hereinabove to take such
action, shall affect the rights or duties of the Agent under this Agreement or
any of the other Loan Documents.  Any
amendment, waiver or consent relating to Section 2.3. or the obligations
of the Swingline Lender under this Agreement or any other Loan Document shall,
in addition to the Lenders required above to take such action, require the
written consent of the Swingline Lender. 
Any amendment, waiver or consent relating to Section 2.2. or the
obligations of the Alternate Currency Lender under this Agreement or any other
Loan Documents shall, in addition to the Lenders required above to take such
action, require the written consent of the Alternate Currency Lender.  No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon and any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. 
Except as otherwise provided in Section 11.5., no course of dealing
or delay or omission on the part of the Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto.  Except as otherwise explicitly provided for
herein or in any other Loan Document, no notice to or demand upon the Borrower
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.


 


Section 12.7.  Nonliability of Agent and Lenders.


 


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


 


Section 12.8.  Confidentiality.


 


Except as otherwise
provided by Applicable Law, the Agent and each Lender shall utilize all non-public
information obtained pursuant to the requirements of this Agreement which has
been identified as confidential or proprietary by the Borrower in accordance
with its customary procedure for handling confidential information of this
nature and in accordance with safe and sound banking practices but in any event
may make disclosure: (a) to any of their respective affiliates (provided
they shall agree to keep such information confidential in accordance with the
terms of this Section); (b) as reasonably requested by any potential or
actual Assignee, Participant or other transferee in connection with the contemplated
transfer of any Commitment or participations therein as permitted hereunder
(provided they shall agree to keep such information confidential in accordance
with the terms of this Section); (c) as required or requested by any
Governmental Authority or representative thereof or pursuant to legal process
or in connection with any legal proceedings or as otherwise required by
Applicable Law; (d) to the Agent’s or such Lender’s independent auditors
and other professional advisors (provided they shall be notified of the
confidential nature of the information); (e) after the happening and
during the continuance of an Event of Default, to any other Person, in
connection with the


 





















 


exercise by the Agent or the Lenders of rights hereunder or under any
of the other Loan Documents; and (f) to the extent such information
(x) becomes publicly available other than as a result of a breach of this
Section actually known to such Lender to be such a breach or (y) becomes
available to the Agent or any Lender on a nonconfidential basis from a source
other than the Borrower or any Affiliate. 
Notwithstanding the foregoing, the Agent and each Lender may disclose
any such confidential information, without notice to the Borrower or any other
Loan Party, to Governmental Authorities in connection with any regulatory
examination of the Agent or such Lender or in accordance with the regulatory
compliance policy of the Agent or such Lender.


 


Section 12.9.  Indemnification.


 


(a)           The
Borrower shall and hereby agrees to indemnify, defend and hold harmless the
Agent, any affiliate of the Agent and each of the Lenders and their respective
directors, officers, shareholders, agents, employees and counsel (each referred
to herein as an “Indemnified Party”) from and against any and all losses,
costs, claims, damages, liabilities, deficiencies, judgments or expenses of
every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any
advice rendered in connection therewith, but excluding losses, costs, claims,
damages, liabilities, deficiencies, judgments or expenses indemnification in
respect of which is specifically covered by Section 3.12. or 4.1. or expressly
excluded from the coverage of such Sections) incurred by an Indemnified Party
in connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an “Indemnity Proceeding”)
which is in any way related directly or indirectly to: (i) this Agreement or
any other Loan Document or the transactions contemplated thereby; (ii) the
making of any Loans or issuance of Letters of Credit hereunder; (iii) any
actual or proposed use by the Borrower of the proceeds of the Loans or Letters
of Credit; (iv) the Agent’s or such Lender’s entering into this Agreement; (v)
the fact that the Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Agent and the
Lenders are creditors of the Borrower and have or are alleged to have
information regarding the financial condition, strategic plans or business operations
of the Borrower and the Subsidiaries; (vii) the fact that the Agent and the
Lenders are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of the Borrower and
the Subsidiaries or their financial condition; (viii) the exercise of any right
or remedy the Agent or the Lenders may have under this Agreement or the other
Loan Documents; provided, however, that the Borrower shall not be obligated to
indemnify any Indemnified Party for any acts or omissions of such Indemnified
Party in connection with matters described in this clause (viii) to the extent
they constitute gross negligence or willful misconduct of such Indemnified
Party; or (ix) any violation or non-compliance by the Borrower or any
Subsidiary of any Applicable Law (including any Environmental Law) including,
but not limited to, any Indemnity Proceeding commenced by (A) the Internal
Revenue Service or state taxing authority or (B) any Governmental Authority or
other Person under any Environmental Law, including any Indemnity Proceeding
commenced by a Governmental Authority or other Person seeking remedial or other
action to cause the Borrower or its Subsidiaries (or its respective properties)
(or the Agent and/or the Lenders as successors to the Borrower) to be in
compliance with such Environmental Laws.


 


 





















 


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


 


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


 


(d)           All out-of-pocket fees and expenses
of, and all amounts paid to third-persons by, an Indemnified Party shall be
advanced by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified
Party is not entitled to indemnification hereunder upon receipt of an
undertaking by such Indemnified Party that such Indemnified Party will
reimburse the Borrower if it is actually and finally determined by a court of
competent jurisdiction that such Indemnified Party is not so entitled to
indemnification hereunder.


 


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


 


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


 


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


 























Section 12.10.  Termination; Survival.


 


At such time as (a) all of the
Commitments have been terminated, (b) all Letters of Credit have terminated,
(c) none of the Lenders nor the Swingline Lender is obligated any longer
under this Agreement to make any Loans and (d) all Obligations (other than
obligations which survive as provided in the following sentence) have been paid
and satisfied in full, this Agreement shall terminate.  The indemnities to which the Agent, the
Lenders and the Swingline Lender are entitled under the provisions of
Sections 3.12., 4.1., 4.4., 11.7., 12.2., 12.9. and 12.18., and any other
provision of this Agreement and the other Loan Documents, and the provisions of
Section 12.4., shall continue in full force and effect and shall protect
the Agent, the Lenders and the Swingline Lender (i) notwithstanding any
termination of this Agreement, or of the other Loan Documents, against events
arising after such termination as well as before and (ii) at all times
after any such party ceases to be a party to this Agreement with respect to all
matters and events existing on or prior to the date such party ceased to be a
party to this Agreement.


 


Section 12.11.  Severability of Provisions.


 


Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining
provisions or affecting the validity or enforceability of such provision in any
other jurisdiction.


 


Section 12.12.  GOVERNING LAW.


 


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


 


Section 12.13.  Counterparts.


 


This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument.


 


Section 12.14.  Obligations with Respect to Loan Parties.


 


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


 


Section 12.15.  Limitation of Liability.


 


Neither the Agent nor any Lender, nor any
affiliate, officer, director, employee, attorney, or agent of the Agent or any
Lender shall have any liability with respect to, and the Borrower hereby
waives, releases, and agrees not to sue any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection


 





















 


with, arising out of, or in any way related to, this Agreement or any
of the other Loan Documents, or any of the transactions contemplated by this
Agreement or any of the other Loan Documents. 
The Borrower hereby waives, releases, and agrees not to sue the Agent or
any Lender or any of the Agent’s or any Lender’s affiliates, officers,
directors, employees, attorneys, or agents for punitive damages in respect of
any claim in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or financed hereby.


 


Section 12.16.  Entire Agreement.


 


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


 


Section 12.17.  Construction.


 


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


 


Section 12.18.  Judgment
Currency.


 


The
obligation of the Borrower to make payments to or for the account of the
Alternate Currency Lender of the principal of and interest on Alternate
Currency Loans in the Currency specified for such payment shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other Currency, except to
the extent that such tender or recovery shall result in the actual receipt by
the Agent or the Alternate Currency Lender, as applicable, of the full amount
of the particular Currency expressed to be payable pursuant to the applicable
Loan Document. The Agent or the Alternate Currency Lender, as applicable,
shall, using all amounts obtained or received from the Borrower pursuant to any
such tender or recovery in payment of principal of and interest on such
Obligations, promptly purchase the applicable Currency at the most favorable
spot exchange rate determined by the Agent or the Agent’s Correspondent, in the
case of the Agent, or by the Alternate Currency Lender, as applicable, to be
available to it. The obligation of the Borrower to make payments to or for the
account of the Alternate Currency Lender in respect of Alternate Currency Loans
in the applicable Currency shall be enforceable as an alternative or additional
cause of action solely for the purpose of recovering in the applicable Currency
the amount, if any, by which such actual receipt shall fall short of the full
amount of the Currency expressed to be payable pursuant to the applicable Loan
Document.  Not in limitation of the
foregoing but not in duplication of amounts payable under Section 4.10.,
the Borrower shall indemnify and hold harmless the Alternate Currency Lender
against any loss incurred by the Alternate Currency Lender as a result of any
payment or recovery described in this Section and as a result of any


 





















 


variation having
occurred in rates of exchange between the date of any such amount becoming due
under this Agreement or any other Loan Document and the date of actual payment
thereof, except to the extent such loss results from the failure of the Agent
or the Alternate Currency Lender to fulfill its obligations under this Section.
The foregoing indemnity shall constitute a separate and independent obligation
of the Borrower and shall continue in full force and effect notwithstanding any
such payment or recovery.


 


Section 12.19.  Patriot Act.


 


The Lenders and the Agent each hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with such Act.


 


SECTION 12.20.  LIABILITY OF TRUSTEES, ETC.


 


THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS
FOLLOWS:


 


THE AMENDED AND RESTATED DECLARATION OF TRUST
ESTABLISHING THE BORROWER, DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER
WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED IN THE OFFICE OF
THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE
NAME “HRPT PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE BORROWER SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR
CLAIM AGAINST, THE BORROWER.  ALL PERSONS
DEALING WITH THE BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.  THE PROVISIONS OF THIS SECTION SHALL NOT
LIMIT ANY OBLIGATIONS OF ANY LOAN PARTY OTHER THAN THE BORROWER.


 


Section 12.21.  NO NOVATION.


 


THE PARTIES
HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS
OF THE EXISTING CREDIT AGREEMENT.  THE
PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO
BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY BORROWER UNDER
OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT).


 





















 


[Signatures on Following Pages]


 





















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Portnoy

  	
   

  
	
   

  	
   

  	
  Name: Adam Portnoy

  
	
   

  	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attest:

  	
  /s/ Jennifer B. Clark

  	
   

  
	
   

  	
   

  	
  Name: Jennifer B. Clark

  
	
   

  	
   

  	
  Title: Senior Vice President

  
							



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION, as

  Agent, as a Lender and as Swingline Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Blackman

  	
   

  
	
   

  	
   

  	
  Name: David Blackman

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $60,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
  301 South College Street

  
	
   

  	
  Mail Code: 
  NC0172

  
	
   

  	
  Charlotte, North Carolina 28288

  
	
   

  	
  Attn: David M. Blackman

  
	
   

  	
  Telephone:

  	
  (704) 374-6272

  
	
   

  	
  Telecopier:

  	
  (704)
  383-6205

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  COMMERZBANK
  AG NEW YORK AND GRAND

  CAYMAN BRANCHES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Brett

  	
   

  
	
   

  	
   

  	
  Name: 
  James Brett

  
	
   

  	
   

  	
  Title: 
  Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ralph C. Marra, Jr.

  	
   

  
	
   

  	
   

  	
  Name: 
  Ralph C. Marra, Jr.

  
	
   

  	
   

  	
  Title: 
  Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $45,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Commerzbank
  AG New York and

  Grand Cayman Branches

  
	
   

  	
  2 World
  Financial Center

  
	
   

  	
  New York, New York  10281-1050

  
	
   

  	
  Attn: 
  Douglas Traynor

  
	
   

  	
  Telephone:

  	
  (212) 266-7569

  
	
   

  	
  Telecopy:

  	
  (212)
  266-7565

  
								



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Blake K. Thompson

  	
   

  
	
   

  	
   

  	
  Name:  Blake K. Thompson

  
	
   

  	
   

  	
  Title: 
  Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $45,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  SunTrust Bank

  
	
   

  	
  8330 Boone Blvd.

  
	
   

  	
  Vienna, Virginia  22182

  
	
   

  	
  Attn: 
  Blake K. Thompson

  
	
   

  	
  Telephone:

  	
  (703) 442-1561

  
	
   

  	
  Telecopy:

  	
  (703) 442-1570

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gordon MacArthur

  	
   

  
	
   

  	
   

  	
  Name: Gordon MacArthur

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Royal Bank of Canada

  
	
   

  	
  New York Branch

  
	
   

  	
  One Liberty Plaza

  
	
   

  	
  New York, New York, 10006-1404

  
	
   

  	
   

  
	
   

  	
  Addresses for Notices:

  
	
   

  	
   

  
	
   

  	
  Royal Bank of Canada

  
	
   

  	
  New York Branch

  
	
   

  	
  One Liberty Plaza, 3rd Floor

  
	
   

  	
  New York, New York 10006-1404

  
	
   

  	
  Attn: Manager, Loans Administration

  
	
   

  	
  Telephone:

  	
  (212) 428-6369

  
	
   

  	
  Telecopy:

  	
  (212) 428-2372

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Royal Bank of Canada

  
	
   

  	
  One Liberty Plaza, 3rd Floor

  
	
   

  	
  New York, New York 10006-1404

  
	
   

  	
  Attn: G. MacArthur

  
	
   

  	
  Telephone:

  	
  (212) 428-2324

  
	
   

  	
  Telecopy:

  	
  (212) 428-6459

  
							



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rick Laudisi

  	
   

  
	
   

  	
   

  	
  Name: Rick Laudisi

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  The Bank of New York

  
	
   

  	
  One Wall Street

  
	
   

  	
  New York, New York 10286

  
	
   

  	
  Attn: Jamia Jasper

  
	
   

  	
  Telephone:

  	
  (212) 635-8245

  
	
   

  	
  Telecopy:

  	
  (212) 809-9526

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  EMIGRANT SAVINGS BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jansen Noyes, III

  	
   

  
	
   

  	
   

  	
  Name: Jansen Noyes, III

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Emigrant Savings Bank

  
	
   

  	
  5 East 42nd Street

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn: Jansen Noyes, III

  
	
   

  	
  Telephone:

  	
  (212) 850-4810

  
	
   

  	
  Telecopy:

  	
  (212) 850-4608

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew D. Coler

  	
   

  
	
   

  	
   

  	
  Name: Andrew D. Coler

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  PNC Bank, National Association

  
	
   

  	
  1600 Market Street

  
	
   

  	
  30th Floor

  
	
   

  	
  Philadelphia, Pennsylvania 19103

  
	
   

  	
  Attn: Andrew D. Coler

  
	
   

  	
  Telephone:

  	
  (215) 585-6129

  
	
   

  	
  Telecopy:

  	
  (215) 585-5806

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  SUMITOMO MITSUI BANKING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William M. Ginn

  	
   

  
	
   

  	
   

  	
  Name: William M. Ginn

  
	
   

  	
   

  	
  Title: General Manager

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Sumitomo Mitsui Banking Corporation

  
	
   

  	
  277 Park Avenue

  
	
   

  	
  New York, New York 10172

  
	
   

  	
  Attn: Charles J. Sullivan

  
	
   

  	
  Telephone:

  	
  (212) 224-4178

  
	
   

  	
  Telecopy:

  	
  (212) 224-4887

  
							



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Michael Raarup

  	
   

  
	
   

  	
   

  	
  Name: Michael Raarup

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  U.S. Bank National Association

  
	
   

  	
  800 Nicollet Mall

  
	
   

  	
  3rd Floor

  
	
   

  	
  BC-MN-H03A

  
	
   

  	
  Minneapolis, Minnesota 55402

  
	
   

  	
  Attn: Mike Raarup

  
	
   

  	
  Telephone:

  	
  (612) 303-3586

  
	
   

  	
  Telecopy:

  	
  (612) 303-2270

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Frederick G. Bright

  	
   

  
	
   

  	
   

  	
  Name: Frederick G. Bright

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Wells Fargo Bank

  
	
   

  	
  Real Estate Group

  
	
   

  	
  121 High Street, 5th Floor

  
	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
  Attn: Frederick G. Bright

  
	
   

  	
  Telephone:

  	
  (617) 574-6310

  
	
   

  	
  Telecopy:

  	
  (617) 772-9337

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  BANKNORTH, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Peter M. Brockelman

  	
   

  
	
   

  	
   

  	
  Name: Peter M. Brockelman

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $30,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Banknorth, N.A.

  
	
   

  	
  370 Main Street

  
	
   

  	
  Worcester, Massachusetts 01608

  
	
   

  	
  Attn: Karen J. Maneen

  
	
   

  	
  Telephone:

  	
  (508) 368-6540

  
	
   

  	
  Telecopy:

  	
  (508) 368-6522

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  AMSOUTH BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David G. Ellis

  	
   

  
	
   

  	
   

  	
  Name: David G. Ellis

  
	
   

  	
   

  	
  Title: Asst. Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  AmSouth Bank

  
	
   

  	
  1900 5th Avenue North

  
	
   

  	
  BAC 15th Floor

  
	
   

  	
  Birmingham, Alabama 35203

  
	
   

  	
  Attn: David Ellis

  
	
   

  	
  Telephone:

  	
  (205) 581-7646

  
	
   

  	
  Telecopy:

  	
  (205) 326-4075

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  BANK OF MONTREAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Thomas A. Batterham

  	
   

  
	
   

  	
   

  	
  Name: Thomas A. Batterham

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Bank of Montreal

  
	
   

  	
  115 S. LaSalle Street

  
	
   

  	
  10W

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: Eduardo Mendoza

  
	
   

  	
  Telephone:

  	
  (312) 461-7521

  
	
   

  	
  Telecopy:

  	
  (312) 293-5852

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jessica L. Kempf

  	
   

  
	
   

  	
   

  	
  Name: Jessica L. Kempf

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Comerica Bank

  
	
   

  	
  500 Woodward Avenue

  
	
   

  	
  7th Floor

  
	
   

  	
  Detroit, Michigan 48226-3256

  
	
   

  	
  Attn: Jessica Kempf

  
	
   

  	
  Telephone:

  	
  (313) 222-6140

  
	
   

  	
  Telecopy:

  	
  (313) 222-9295

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  MALAYAN BANKING BERHAD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wan Fadzmi Othman

  	
   

  
	
   

  	
   

  	
  Name: Wan Fadzmi Othman

  
	
   

  	
   

  	
  Title: General Manager

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Malayan Banking Berhad

  
	
   

  	
  400 Park Avenue

  
	
   

  	
  9th Floor

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attn: Nor Akmar Wallace

  
	
   

  	
  Telephone:

  	
  (212) 303-1319

  
	
   

  	
  Telecopy:

  	
  (212) 308-0109

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Bertram H. Tang

  	
   

  
	
   

  	
   

  	
  Name: Bertram H. Tang

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Mizuho Corporate Bank, Ltd.

  
	
   

  	
  1251 Avenue of the Americas, 33rd Floor

  
	
   

  	
  New York, New York 10020

  
	
   

  	
  Attn: Randy P. Fleisher

  
	
   

  	
  Telephone:

  	
  (212) 282-3175

  
	
   

  	
  Telecopy:

  	
  (212) 282-4488

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  SOCIETE GENERALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carina T. Huynh

  	
   

  
	
   

  	
   

  	
  Name: Carina T. Huynh

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Societe Generale

  
	
   

  	
  1221 Avenue of the Americas

  
	
   

  	
  New York, New York 10020

  
	
   

  	
  Attn: Carina Huynh

  
	
   

  	
  Telephone:

  	
  (212) 278-5422

  
	
   

  	
  Telecopy:

  	
  (212) 278-7614

  
								



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  SOVEREIGN BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Katherine Felpel

  	
   

  
	
   

  	
   

  	
  Name: Katherine Felpel

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Sovereign Bank

  
	
   

  	
  75 State Street

  
	
   

  	
  MA1 SST 04-11

  
	
   

  	
  Boston, Massachusetts 02109

  
	
   

  	
  Attn: T. Gregory Donohue

  
	
   

  	
  Telephone:

  	
  (617) 757-5578

  
	
   

  	
  Telecopy:

  	
  (617) 757-5652

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  UFJ BANK LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Yoichi Orikasa

  	
   

  
	
   

  	
   

  	
  Name: Yoichi Orikasa

  
	
   

  	
   

  	
  Title: Deputy General Manager

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $25,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  UFJ Bank Limited

  
	
   

  	
  55 East 52nd Street

  
	
   

  	
  New York, New York 10055

  
	
   

  	
  Attn: Jesse McDonald

  
	
   

  	
  Telephone:

  	
  (212) 339-6210

  
	
   

  	
  Telecopy:

  	
  (212) 754-1304

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  CHANG HWA COMMERCIAL BANK, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Ming-Hsien Lin

  	
   

  
	
   

  	
   

  	
  Name: Ming-Hien Lin

  
	
   

  	
   

  	
  Title: SVP and General Manager

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $20,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Chang Hwa Commercial Bank, Ltd.

  
	
   

  	
  685 Third Avenue

  
	
   

  	
  29th Floor

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn: Melody Tsou

  
	
   

  	
  Telephone:

  	
  (212) 651-9770 ext. 28

  
	
   

  	
  Telecopy:

  	
  (212) 651-9785

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  CHEVY CHASE BANK, FSB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Ronald Huffman

  	
   

  
	
   

  	
   

  	
  Name: Ronald Huffman

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $20,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Chevy Chase Bank

  
	
   

  	
  7501 Wisconsin Avenue

  
	
   

  	
  12th Floor

  
	
   

  	
  Bethesda, Maryland 20814

  
	
   

  	
  Attn: Ronald Huffman

  
	
   

  	
  Telephone:

  	
  (240) 497-7767

  
	
   

  	
  Telecopy:

  	
  (240) 497-7714

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael
  W. Edwards

  	
   

  
	
   

  	
   

  	
  Name: Michael W. Edwards

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $15,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Bank of America, N.A.

  
	
   

  	
  231 S. LaSalle Street, 10th
  Floor

  
	
   

  	
  Mail Code: IL 1-231-10-35

  
	
   

  	
  Chicago, Illinois 60604

  
	
   

  	
  Attn: Cheryl Sneor

  
	
   

  	
  Telephone:

  	
  (312) 828-5215

  
	
   

  	
  Telecopy:

  	
  (312) 974-4970

  
						



 


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Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  BANK HAPOALIM B.M.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marc
  Bosc

  	
   

  
	
   

  	
   

  	
  Name: Marc Bosc

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Laura
  Anne Raffa

  	
   

  
	
   

  	
   

  	
  Name: Laura Anne Raffa

  
	
   

  	
   

  	
  Title: Executive Vice President &
  Corporate Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $15,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Bank Hapoalim B.M.

  
	
   

  	
  1177 Avenue of the Americas

  
	
   

  	
  New York, New York 10036

  
	
   

  	
  Attn: Marc Bosc

  
	
   

  	
  Telephone:

  	
  (212) 782-2181

  
	
   

  	
  Telecopy:

  	
  (212) 782-2382

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  EASTERN BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Douglas
  M. Smith

  	
   

  
	
   

  	
   

  	
  Name: Douglas M. Smith

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $15,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Eastern Bank

  
	
   

  	
  265 Franklin Street

  
	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
   

  
	
   

  	
  Attn: Douglas M. Smith

  
	
   

  	
  Telephone:

  	
  (617) 897-1065

  
	
   

  	
  Telecopy:

  	
  (617) 897-1093

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  NATIONAL BANK OF EGYPT NEW YORK
  BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Hassan
  Eissa / Rami El-Rifai

  	
   

  
	
   

  	
   

  	
  Name: Hassan Eissa / Rami El-Rifai

  
	
   

  	
   

  	
  Title: General Manager / Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $15,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  National Bank of Egypt New York Branch

  
	
   

  	
  40 East 52nd Street

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attn: Rami El-Rifai

  
	
   

  	
  Telephone:

  	
  (212) 326-8105

  
	
   

  	
  Telecopy:

  	
  (212) 326-8111

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  BANK OF CHINA, NEW YORK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ William
  W. Smith

  	
   

  
	
   

  	
   

  	
  Name: William W. Smith

  
	
   

  	
   

  	
  Title: Deputy General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Bank of China, New York

  
	
   

  	
  410 Madison Avenue

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn: David Hoang

  
	
   

  	
  Telephone:

  	
  (212) 935-3101 ext. 229

  
	
   

  	
  Telecopy:

  	
  (212) 308-4993

  
						



 


[Signatures Continued on Next
Page]


 





















 


[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  CITIZENS BANK OF MASSACHUSETTS

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel
  R. Ouellette

  	
   

  
	
   

  	
   

  	
  Name: Daniel R. Ouellette

  
	
   

  	
   

  	
  Title: SVP

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Citizens Bank of Massachusetts

  
	
   

  	
  28 State Street

  
	
   

  	
  14th Floor

  
	
   

  	
  Boston, Massachusetts 02109

  
	
   

  	
  Attn: Daniel Ouellette

  
	
   

  	
  Telephone:

  	
  (617) 725-5602

  
	
   

  	
  Telecopy:

  	
  (617) 725-5695

  
						



 


[Signatures Continued on Next
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[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  CREDIT SUISSE FIRST BOSTON, ACTING THROUGH

  ITS CAYMAN ISLANDS BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Bill
  O’Daly / Cassandra Droogan

  	
   

  
	
   

  	
   

  	
  Name: Bill O’Daly / Cassandra Droogan

  
	
   

  	
   

  	
  Title: Director / Associate

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Credit Suisse First Boston

  
	
   

  	
  Eleven Madison Avenue

  
	
   

  	
  New York, New York 10010

  
	
   

  	
  Attn: William O’Daly

  
	
   

  	
  Telephone:

  	
  (212) 325-1986

  
	
   

  	
  Telecopy:

  	
  (212) 743-2254

  
						



 


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[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  FIRST HAWAIIAN BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ronald
  C. M. Chang

  	
   

  
	
   

  	
   

  	
  Name: Ronald C. M. Chang

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  First Hawaiian Bank

  
	
   

  	
  999 Bishop Street

  
	
   

  	
  11th Floor

  
	
   

  	
  Honolulu, Hawaii 96813

  
	
   

  	
  Attn: Ronald C. M. Chang

  
	
   

  	
  Telephone:

  	
  (808) 525-5194

  
	
   

  	
  Telecopy:

  	
  (808) 525-6372

  
						



 


[Signatures Continued on Next
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[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  THE GOVERNOR AND COMPANY OF THE BANK OF

  IRELAND

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Conor
  Linehan / Fiona Smith

  	
   

  
	
   

  	
   

  	
  Name: Conor Linehan / Fiona Smith

  
	
   

  	
   

  	
  Title: Authorised Signatory / Authorised
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Bank of Ireland International Finance
  Limited

  
	
   

  	
  La Touche House, P.O. Box 3267

  
	
   

  	
  International Financial Services Centre

  
	
   

  	
  Custom House Docks, Dublin 1, Ireland

  
	
   

  	
  Attn: Philip Allen

  
	
   

  	
  Telephone:

  	
  353-1-611-5406

  
	
   

  	
  Telecopy:

  	
  353-1-829-0129

  
						



 


[Signatures Continued on Next
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[Signature
Page to Amended and Restated Credit Agreement dated as of


January 25, 2005 with HRPT Properties Trust]


 


	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Louis
  Alder

  	
   

  
	
   

  	
   

  	
  Name: Louis Alder

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  Commitment Amount:

  
	
   

  	
   

  
	
   

  	
  $10,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office (all Types of Loans):

  
	
   

  	
   

  
	
   

  	
  Merrill Lynch Bank USA

  
	
   

  	
  15 W. South Temple

  
	
   

  	
  Suite 300

  
	
   

  	
  Salt Lake City, Utah 84101

  
	
   

  	
  Attn: David Millett

  
	
   

  	
  Telephone:

  	
  (801) 526-8312

  
	
   

  	
  Telecopy:

  	
  (801) 933-8641

  
						



 


[Signatures Continued on Next
Page]


 





















 


SCHEDULE 1.1(A)


 


List of Loan Parties


 


1735 Market Street Properties
Trust


4 Maguire
Road Realty Trust


47
Harvard Street Real Estate Trust


Blue Dog Properties Trust


Candler Associates, L.L.C.


Candler Property Trust


Causeway Holdings, Inc.


First Associates LLC


Fourth and Roma Property Trust


Hawaii 2x5 O Properties Trust


Health and Retirement
Properties International, Inc.


HH Hub Properties LLC


Higgins Properties LLC


HRP GP, LLC


HRPT Medical Buildings Realty
Trust


HRPT Memphis LLC


Hub Acquisition Trust


HUB BD Mixed Sec. Properties,
L.P.


Hub LA Limited Partnership


Hub LA Properties Trust


Hub Management, Inc.


Hub MA
Realty Trust


Hub Properties GA LLC


Hub Properties Trust


Hub Realty College Park I, LLC


Hub Realty College Park, Inc.


Hub Realty Funding, Inc.


Hub Realty Golden, Inc.


Hub Realty Kansas City, Inc.


Hub RI Properties Trust


Hub Woodmont Investment Trust


Hub Woodmont Limited Liability
Company


Indemnity Collection
Corporation


LTMAC Properties LLC


Masters Properties LLC


MOB
Realty Trust


Nine Penn Center Associates,
L.P.


Nine Penn Center Properties
Trust


Orville Properties LLC


Park San Antonio Properties
Trust


Putnam
Place Realty Trust


Research Park Properties Trust


 





















 


RFRI Properties LLC


Ridge Lake Properties LLC


Robin 1 Properties LLC


Rosedale Properties Trust


Tanaka Properties LLC


Tedcal Properties LLC


TSM Properties LLC


University
Avenue Realty Trust


Z&A Properties LLC


 


2





















 


[The following schedules have been omitted
and will be supplementally furnished to the Securities and Exchange Commission
upon request:]


 


SCHEDULE
6.1.(b)                       Ownership
Structure


SCHEDULE
6.1.(f)                        Title to
Properties; Liens


SCHEDULE
6.1.(g)                       Indebtedness
and Guaranties


SCHEDULE
6.1.(h)                       Material
Contracts


SCHEDULE
6.1.(i)                        Litigation


SCHEDULE
6.1.(k)                       Financial
Statements


SCHEDULE
6.1.(y)                       List of
Unencumbered Assets and Unencumbered Mortgage Notes


SCHEDULE 9.4.                            Existing Investments


 





















 


EXHIBIT
A


 


FORM
OF ALTERNATE CURRENCY NOTE


 


 


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      January      ,
2005


 


FOR VALUE RECEIVED, the undersigned, HRPT
PROPERTIES TRUST, a Maryland real estate investment trust (the “Borrower”),
hereby promises to pay to the order of WACHOVIA BANK, NATIONAL ASSOCIATION (the
“Alternate Currency Lender”), in care of Wachovia Bank, National Association,
London Branch, at its address at 3 Bishopsgate, London 3C2N 3AB, or such other
financial institution designated by the Agent to act as the Agent’s
Correspondent or at such other address as may be specified in writing by the
Agent to the Borrower, the aggregate unpaid principal amount of Alternate
Currency Loans made by the Alternate Currency Lender to the Borrower under the
Credit Agreement (as herein defined), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, in the currencies, at the rates and on the dates
provided in the Credit Agreement.


 


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


 


This Note is the Alternate Currency Note
referred to in the Amended and Restated Credit Agreement dated as of January    ,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among the Borrower, the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), the Agent, and the other parties
thereto.  Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.


 


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


 


Except as
permitted by Section 12.5.  of
the Credit Agreement, this Note may not be assigned by the Alternate Currency
Lender to any Person.


 


A-1





















 


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


 


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


 


Time is of the essence for this Note.


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


A-2





















 


EXHIBIT
B


 


FORM OF ASSIGNMENT AND
ACCEPTANCE AGREEMENT


 


THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT
dated as of
             ,
200  (the “Agreement”) by and among
                       
(the “Assignor”),
                              
(the “Assignee”), and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the
“Agent”).


 


WHEREAS, the Assignor is a Lender under that certain Amended and
Restated Credit Agreement dated as of January       ,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among HRPT Properties Trust (the
“Borrower”), the financial institutions party thereto and their assignees under
Section 12.5. thereof (the “Lenders”), the Agent,
and the other parties thereto;


 


WHEREAS, the Assignor desires to assign to
the Assignee, among other things, all or a portion of the Assignor’s Commitment
under the Credit Agreement, all on the terms and conditions set forth herein;
and


 


WHEREAS, the Agent consents to such
assignment on the terms and conditions set forth herein;


 


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


 


Section 1.  Assignment.


 


(a)                                  Subject to the terms
and conditions of this Agreement and in consideration of the payment to be made
by the Assignee to the Assignor pursuant to Section 2 of this Agreement,
effective as of
             ,
200    (the “Assignment Date”), the Assignor hereby irrevocably
sells, transfers and assigns to the Assignee, without recourse, a
$                
interest (such interest being the “Assigned Commitment”) in and to the
Assignor’s Commitment and all of the other rights and obligations of the
Assignor under the Credit Agreement, the Assignor’s Revolving Note and the
other Loan Documents (representing
        % in respect of the aggregate
amount of all Lenders’ Commitments), including without limitation, a principal
amount of outstanding Revolving Loans equal to
$            and all
voting rights of the Assignor associated with the Assigned Commitment, all
rights to receive interest on such amount of Revolving Loans and all commitment
and other Fees with respect to the Assigned Commitment and other rights of the
Assignor under the Credit Agreement and the other Loan Documents with respect
to the Assigned Commitment.  The
Assignee, subject to the terms and conditions hereof, hereby assumes all
obligations of the Assignor as a Lender with respect to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation to make Revolving Loans to the Borrower with respect to the Assigned
Commitment, the obligation to pay the Agent amounts due in respect of draws
under Letters of Credit as required under Section 2.4.(i) of the Credit
Agreement and the obligation to indemnify the Agent as 


 


B-1





















 


provided in the
Credit Agreement (the foregoing enumerated obligations, together with all other
similar obligations more particularly set forth in the Credit Agreement and the
other Loan Documents, shall be referred to hereinafter, collectively, as the
“Assigned Obligations”).  The Assignor
shall have no further duties or obligations with respect to, and shall have no
further interest in, the Assigned Obligations or the Assigned Commitment from
and after the Assignment Date.


 


(b)                                 The assignment by the
Assignor to the Assignee hereunder is without recourse to the Assignor.  The Assignee makes and confirms to the Agent,
the Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI. of the
Credit Agreement.  Not in limitation of
the foregoing, the Assignee acknowledges and agrees that, except as set forth
in Section 4 below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or
future solvency or financial condition of the Borrower, any Subsidiary or any
other Loan Party, (ii) any representations, warranties, statements or
information made or furnished by the Borrower, any Subsidiary or any other Loan
Party in connection with the Credit Agreement or otherwise, (iii) the
validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any
other Loan Document or any other document or instrument executed in connection
therewith, or the collectibility of the Assigned Obligations, (iv) the
perfection, priority or validity of any Lien with respect to any collateral at
any time securing the Obligations or the Assigned Obligations under the Notes
or the Credit Agreement and (v) the performance or failure to perform by
the Borrower or any other Loan Party of any obligation under the Credit
Agreement or any other Loan Document to which it is a party.  Further, the Assignee acknowledges that it
has, independently and without reliance upon the Agent, or on any affiliate or
subsidiary thereof, the Assignor or any other Lender and based on the financial
statements supplied by the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to become
a Lender under the Credit Agreement.  The
Assignee also acknowledges that it will, independently and without reliance
upon the Agent, the Assignor or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement
or any other Loan Documents or pursuant to any other obligation.  Except as expressly
provided in the Credit Agreement, the Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to
provide the Assignee with any credit or other information with respect to the
Borrower or any other Loan Party or to notify the Assignee of any Default or
Event of Default.  The Assignee
has not relied on the Agent as to any legal or factual matter in connection
therewith or in connection with the transactions contemplated thereunder.


 


Section 2.  Payment by Assignee.  In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, such amount as they may agree.


 


Section 3.  Payments by Assignor.  The Assignor agrees to pay to the Agent on
the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.


 


B-2





















 


Section 4.  Representations and
Warranties of Assignor.  The
Assignor hereby represents and warrants to the Assignee that (a) as of the
Assignment Date (i) the Assignor is a Lender under the Credit Agreement
having a Commitment under the Credit Agreement (without reduction by any
assignments thereof which have not yet become effective), equal to
$                ,
and (ii) the outstanding balance of Revolving Loans owing to the Assignor
(without reduction by any assignments thereof which have not yet become
effective) is
$                            ;
and (b) it is the legal and beneficial owner of the Assigned Commitment
which is free and clear of any adverse claim created by the Assignor.


 


Section 5.  Representations,
Warranties and Agreements of Assignee.  The Assignee (a) represents and warrants
that it is (i) legally authorized to enter into this Agreement and
(ii)  an Eligible Assignee; (b) confirms that to the extent it is not
already a Lender and has so requested, it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered in connection therewith or pursuant thereto and such other documents
and information (including without limitation the Loan Documents) as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (c) appoints and authorizes the Agent to take such action
as contractual representative on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto; and (d) agrees that
if it is not already a Lender and to the extend of the assigned interest, it
will become a party to and shall be bound by the Credit Agreement and the other
Loan Documents to which the other Lenders are a party on the Assignment Date
and will perform in accordance therewith all of the obligations which are
required to be performed by it as a Lender with respect to the Assigned
Commitment.


 


Section 6.  Recording and
Acknowledgment by the Agent. 
Following the execution of this Agreement, the Assignor will deliver to
the Agent (a) a duly executed copy of this Agreement for acknowledgment
and recording by the Agent and (b) the Assignor’s Revolving Note.  Upon such acknowledgment and recording, from
and after the Assignment Date, the Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, Fees
and other amounts) to the Assignee.  The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement for periods prior to the Assignment Date directly between
themselves.


 


Section 7.  Addresses.  The Assignee specifies as its address for
notices and its Lending Office for all Loans, the offices set forth on Schedule 1
attached hereto.


 


Section 8.  Payment Instructions.  All payments to be made to the Assignee under
this Agreement by the Assignor, and all payments to be made to the Assignee
under the Credit Agreement, shall be made as provided in the Credit Agreement
in accordance with the instructions set forth on Schedule 1 attached
hereto or as the Assignee may otherwise notify the Agent.


 


Section 9.  Effectiveness of
Assignment.  This Agreement,
and the assignment and assumption contemplated herein, shall not be effective
until (a) this Agreement is executed and 


 


B-3





















 


delivered by each of the Assignor, the Assignee, the Agent, and if
required under Section 12.5.(d) of the Credit
Agreement, the Borrower, and (b) the payment to the Assignor of the
amounts, if any, owing by the Assignee pursuant to Section 2 hereof and
(c) the payment to the Agent of the amounts, if any, owing by the Assignor
pursuant to Section 3 hereof.  Upon
recording and acknowledgment of this Agreement by the Agent, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement
with respect to the Assigned Commitment and, to the extent thereof, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent of the Assigned Commitment, relinquish its rights (except as
otherwise provided in Section 12.10. of the Credit Agreement) and be
released from its obligations under the Credit Agreement; provided, however,
that if the Assignor does not assign its entire interest under the Loan
Documents, it shall remain a Lender entitled to all of the benefits and subject
to all of the obligations thereunder with respect to its retained Commitment.


 


Section 10.  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 


Section 11.  Counterparts.  This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and
the same agreement.


 


Section 12.  Headings.  Section headings have been inserted
herein for convenience only and shall not be construed to be a part hereof.


 


Section 13.  Amendments; Waivers.  This Agreement may not be amended, changed,
waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent
which shall affect the rights or duties of the Agent under this Agreement shall
not be effective unless signed by the Agent.


 


Section 14.  Entire Agreement.  This Agreement embodies the entire agreement
between the Assignor and the Assignee with respect to the subject matter hereof
and supersedes all other prior arrangements and understandings relating to the
subject matter hereof.


 


Section 15.  Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.


 


Section 16.  Definitions.  Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.


 


[Include this Section only if Borrower’s
consent is required under Section 12.5.(d)


 


Section 17.  Agreements of the
Borrower.  The Borrower hereby
agrees that the Assignee shall be a Lender under the Credit Agreement having a
Commitment equal to the Assigned Commitment. 
The Borrower agrees that the Assignee shall have all of the rights and
remedies of a Lender under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment, including, but not limited to, the
right of a Lender to receive payments of principal and interest


 


B-4





















 


with respect to
the Assigned Obligations, and to the Revolving Loans made by the Lenders after
the date hereof and to receive the commitment fee and other Fees payable to the
Lenders as provided in the Credit Agreement. 
The Borrower further agrees, upon the execution and delivery of this
Agreement, to execute in favor of the Assignee (and if necessary the Assignor)
Notes as required by Section 12.5.(d) of the
Credit Agreement.  Upon receipt by the
Assignor of the amounts due the Assignor under Section 2, the Assignor
agrees to surrender to the Borrower such Assignor’s Notes, for reissue to the
extent appropriate, if any.


 


[Signatures on
Following Pages]


 


B-5





















 


IN WITNESS WHEREOF, the parties hereto have
duly executed this Assignment and Acceptance Agreement as of the date and year
first written above.


 


	
   

  	
  ASSIGNOR:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AGENT:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION, as

  Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


[Include
signature of the Borrower only

if required under Section 12.5.(d) of

the Credit Agreement]


Agreed and
consented to as of the


date
first written above.


 


	
  BORROWER:

  	
   

  
	
   

  	
   

  
	
  HRPT PROPERTIES TRUST

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
						



 


B-6





















 


SCHEDULE 1


 


Information Concerning the Assignee


 


 


	
  Notice Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  	
   

  	
   

  
	
   

  	
  Telecopy No.:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lending Office:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  	
   

  	
   

  
	
   

  	
  Telecopy No.:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Payment Instructions:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


B-7





















 


EXHIBIT C


 


FORM OF GUARANTY


 


THIS GUARANTY dated as of January    ,
2005, executed and delivered by each of the undersigned and the other Persons
from time to time party hereto pursuant to the execution and delivery of an
Accession Agreement in the form of Annex I hereto (all of the undersigned,
together with such other Persons each a “Guarantor” and collectively, the “Guarantors”)
in favor of (a) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as
Agent (the “Agent”) for the Lenders under that certain that certain Amended and
Restated Credit Agreement dated as of January    , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among HRPT Properties Trust (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), the Agent, and the other parties
thereto, and (b) the Lenders.


 


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


 


WHEREAS, the Borrower
owns, directly or indirectly, at least a majority of the issued and outstanding
Equity Interests in each Guarantor;


 


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


 


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


 


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


 


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


 


Section 1.  Guaranty.  Each Guarantor hereby absolutely, irrevocably
and unconditionally guaranties the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all of
the following (collectively referred to as the “Guarantied Obligations”):
(a) all indebtedness and obligations owing by the Borrower to the
Alternate Currency Lender, the Swingline Lender, any other Lender or the Agent
under or in connection


 


C-1





















 


with the Credit Agreement and any other Loan Document, including
without limitation, the repayment of all principal of the Revolving Loans,
Alternate Currency Loans, Swingline Loans and the Reimbursement Obligations,
and the payment of all interest, Fees, charges, attorneys’ fees and other
amounts payable to any Lender or the Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments
or substitutions of the foregoing; (c) all expenses, including, without
limitation, reasonable attorneys’ fees and disbursements, that are incurred by
the Lenders and the Agent in the enforcement of any of the foregoing or any
obligation of such Guarantor hereunder; and (d) all other Obligations.


 


Section 2.  Guaranty of Payment and
Not of Collection.  This
Guaranty is a guaranty of payment, and not of collection, and a debt of each
Guarantor for its own account. 
Accordingly, none of the Lenders or the Agent shall be obligated or
required before enforcing this Guaranty against any Guarantor: (a)  to
pursue any right or remedy any of them may have against the Borrower, any other
Guarantor or any other Person or commence any suit or other proceeding against
the Borrower, any other Guarantor or any other Person in any court or other
tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand
of the Borrower, any other Guarantor or any other Person or to enforce or seek
to enforce or realize upon any collateral security held by the Lenders or the
Agent which may secure any of the Guarantied Obligations.


 


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


 


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


 


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


 


C-2





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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of the Credit
Agreement or to be held by the Agent as collateral security for any Guarantied
Obligations existing.


 


Section 11.  Payments Free and Clear.  All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be
paid in full, without set-off or counterclaim or any deduction or withholding
whatsoever (including any Taxes), and if any Guarantor is required by
Applicable Law or by a Governmental Authority to make any such deduction or
withholding, such Guarantor shall pay to the Agent and the Lenders such
additional amount as will result in the receipt by the Agent and the Lenders of
the full amount payable hereunder had such deduction or withholding not
occurred or been required.


 


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


 


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


 


Section 14.  Avoidance Provisions.  It is the intent of each Guarantor, the Agent
and the Lenders that in any Proceeding, such Guarantor’s maximum obligation
hereunder shall equal, but not exceed, the maximum amount which would not
otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
Applicable Law, including without limitation, (a) Section 548 of the
Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”) and (b) any
state fraudulent transfer or fraudulent conveyance act or statute applied in
such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code
or otherwise.  The Applicable Laws under
which the possible avoidance or


 


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unenforceability
of the obligations of such Guarantor hereunder (or any other obligations of
such Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the “Avoidance Provisions”.  Accordingly, to the extent that the
obligations of any Guarantor hereunder would otherwise be subject to avoidance
under the Avoidance Provisions, the maximum Guarantied Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
as of the time any of the Guarantied Obligations are deemed to have been
incurred under the Avoidance Provisions, would not cause the obligations of
such Guarantor hereunder (or any other obligations of such Guarantor to the
Agent and the Lenders), to be subject to avoidance under the Avoidance
Provisions.  This Section is
intended solely to preserve the rights of the Agent and the Lenders hereunder
to the maximum extent that would not cause the obligations of any Guarantor
hereunder to be subject to avoidance under the Avoidance Provisions, and no
Guarantor or any other Person shall have any right or claim under this Section as
against the Agent and the Lenders that would not otherwise be available to such
Person under the Avoidance Provisions.


 


Section 15.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower
and the other Guarantors, and of all other circumstances bearing upon the risk
of nonpayment of any of the Guarantied Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Agent or the Lenders shall have any duty whatsoever to
advise any Guarantor of information regarding such circumstances or risks.


 


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


 


SECTION 17.  WAIVER OF JURY TRIAL.


 


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


 


(b)                                 EACH
OF THE GUARANTORS, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL
DISTRICT COURT OF THE SOUTHERN 


 


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DISTRICT OF NEW YORK OR, AT THE OPTION OF THE AGENT,
ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE AGENT
OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM.  EACH GUARANTOR AND EACH OF THE LENDERS
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS.  EACH PARTY FURTHER WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL
NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER
OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH
FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


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


 


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


 


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


 


Section 20.  Termination.  This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement
in accordance with its terms.


 


C-7





















 


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


 


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


 


Section 23.  Amendments.  This Guaranty may not be amended except in
writing signed by the Requisite Lenders (or all of the Lenders if required
under the terms of the Credit Agreement), the Agent and each Guarantor.


 


Section 24.  Payments.  All payments to be made by any Guarantor
pursuant to this Guaranty shall be made in Dollars, in immediately available
funds to the Agent at the Principal Office, not later than 2:00 p.m. on the
date of demand therefor.


 


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


 


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


 


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


 


C-8





















 


Section 28.  Trustees, Etc.
Not Liable.


 


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


 


Section 29.  Limitation of Liability.


 


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


 


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


 


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


 


C-9





















 


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


 


[Signatures on Next Page]


 


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


 


[SIGNATURE
BLOCKS FOR


GUARANTORS]


 


C-11





















 


ANNEX I


 


FORM OF ACCESSION AGREEMENT


 


THIS ACCESSION AGREEMENT dated as of           ,
         , executed and delivered
by                         ,
a                        
(the “New Subsidiary”), in favor of (a) WACHOVIA BANK, NATIONAL
ASSOCIATION, in its capacity as Agent (the “Agent”) for the Lenders under that
certain Amended and Restated Credit Agreement dated as of January   , 2005
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), by and among HRPT Properties Trust (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”), the Agent, and the other
parties thereto, and (b) the Lenders.


 


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


 


WHEREAS, the Borrower
owns, directly or indirectly, at least a majority of the issued and outstanding
Equity Interests in the New Subsidiary;


 


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


 


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


 


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


 


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


 


Section 1.  Accession to Guaranty.  The New Subsidiary hereby agrees that it is a
“Guarantor” under that certain Guaranty dated as of January   , 2005
(as amended, supplemented, restated or otherwise modified from time to time,
the “Guaranty”), made by each Subsidiary of the Borrower a party thereto in
favor of the Agent and the Lenders and assumes all obligations of a “Guarantor”
thereunder, all as if the New Subsidiary had been an original signatory to the
Guaranty.  Without limiting the
generality of the foregoing, the New Subsidiary hereby:


 


C-12





















 


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


 


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


 


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


 


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


 


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


 


[Signatures on Next Page]


 


C-13





















 


 


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


 


	
   

  	
  [NEW SUBSIDIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  c/o HRPT Properties Trust

  
	
   

  	
  400 Centre Street

  
	
   

  	
  Newton, Massachusetts 02458

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telecopy Number:

  	
  (617) 332-2261

  
	
   

  	
  Telephone Number:

  	
  (617) 332-3990

  
						



 


 


Accepted:


 


	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  as Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
						



 


 


C-14





















 


EXHIBIT D


 


FORM OF NOTICE OF ALTERNATE
CURRENCY LOAN


 


                ,
200  


 


Wachovia Bank,
National Association, 

as Agent


301 South College Street, NC0172


Charlotte, North Carolina 28288


Attention:  David M. Blackman


 


Ladies and Gentlemen:


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of January   , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among HRPT Properties Trust (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


1.                                       Pursuant
to Section 2.2.(b) of the Credit Agreement, the Borrower hereby requests
that the Alternate Currency Lender make an Alternate Currency Loan to the
Borrower in an amount equal to:


 


€                        


£                         


CA$                    


 


2.                                       The
Borrower requests that such Alternate Currency Loan be made available to the
Borrower on
                 ,
200  


 


3.                                       The
Borrower hereby requests that such Alternate Currency Loan have an initial
Interest Period for a duration of:


 


	
   

  	
  [Check
  one box only]

  	
  o

  	
  7 days

  	
   

  
	
   

  	
  o

  	
  1 month

  	
   

  
	
   

  	
  o

  	
  3 months

  	
   

  
	
   

  	
  o

  	
  6 months

  	
   

  
	
   

  	
  o

  	
  12 months (if available)

  	
   

  



 


4.                                       The
Borrower requests that the proceeds of such Alternate Currency Loan be made
available to the Borrower by                                        .


 


D-1





















 


The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the making of the requested Alternate
Currency Loan and after giving effect thereto, (a) the proceeds of such
Alternate Currency Loan are to be used for purposes permitted under Section 7.8.
of the Credit Agreement, (b) no Default or Event of Default exists or shall
exist, and (c) the representations and warranties made or deemed made by
the Borrower and each other Loan Party in the Loan Documents to which any of
them is a party are and shall be true and correct in all material respects,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
were true and correct on and as of such earlier date) and except for changes in
factual circumstances specifically and expressly permitted under the Credit
Agreement.  In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Alternate Currency Loan contained in Article V. of the Credit
Agreement will have been satisfied (or waived in accordance with the applicable
provisions of the Loan Documents) at the time such Alternate Currency Loan is
made.


 


If notice of the requested Alternate Currency
Loan was previously given by telephone, this notice is to be considered the
written confirmation of such telephone notice required by Section 2.2.(b)
of the Credit Agreement.


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-2





















 


EXHIBIT E


 


FORM OF NOTICE OF BORROWING


 


                  ,
200  


 


Wachovia Bank,
National Association, 

as Agent


301 South College Street, NC0172


Charlotte, North Carolina 28288


Attention:  David M. Blackman


 


Ladies and Gentlemen:


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of January   , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among HRPT Properties Trust (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


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


 


2.                                       The
Borrower requests that such Revolving Loans be made available to the Borrower
on                       ,
200  .


 


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


 


[Check one
box only]


 


o      Base Rate Loans


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


 


	
   

  	
  [Check
  one box only]

  	
  o

  	
  7 days

  	
   

  
	
   

  	
  o

  	
  1 month

  	
   

  
	
   

  	
  o

  	
  3 months

  	
   

  
	
   

  	
  o

  	
  6 months

  	
   

  
	
   

  	
  o

  	
  12 months (if available)

  	
   

  



 


4.                                       The
Borrower requests that the proceeds of this borrowing of Revolving Loans be
made available to the Borrower by                               .


 


E-1





















 


The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the making of the requested Revolving
Loans and after giving effect thereto, (a) the proceeds of such Revolving
Loans are to be used for purposes permitted under Section 7.8. of the Credit
Agreement, (b) no Default or Event of Default exists or will exist, and
(c) the representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of them is a party
are and shall be true and correct in all material respects, except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties were true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Credit
Agreement.  In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Revolving Loans contained in Article V. of the Credit Agreement
will have been satisfied at the time such Revolving Loans are made.


 


If notice of the requested borrowing of
Revolving Loans was previously given by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section 2.1.(b)
of the Credit Agreement.


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


E-2





















 


EXHIBIT F


 


FORM OF NOTICE OF CONTINUATION


 


              ,
200  


 


Wachovia Bank,
National Association, 

as Agent


301 South College Street, NC0172


Charlotte, North Carolina 28288


Attention:  David M. Blackman


 


Ladies and Gentlemen:


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of January    , 2005
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), by and among HRPT Properties Trust (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


Pursuant to Section 2.9.
of the Credit Agreement, the Borrower hereby requests
a Continuation of a borrowing of Loans or of an Alternate Currency Loan (as
indicated below) under the Credit Agreement, and in that connection sets forth
below the information relating to such Continuation as required by such Section of
the Credit Agreement:


 


1.                                       The
Loan(s) subject to such Continuation is (are):


 


o                                    Revolving Loans


o                                    An Alternate Currency Loan


 


2.                                       The
proposed date of such Continuation is                      ,          .


 


3.                                       The
aggregate principal amount of such Loan(s) subject to the requested
Continuation is                         
and was originally borrowed by the Borrower on                           ,
200  .


 


4.                                       The
portion of such principal amount subject to such Continuation is
                                       .


 


5.                                       The
current Interest Period for Loan(s) subject to such Continuation ends on                                        ,
200  .


 


F-1





















 


6.                                       The
duration of the new Interest Period for such Loan(s) or portion thereof subject
to such Continuation is:


 


	
   

  	
  [Check
  one box only]

  	
  o

  	
  7 days

  	
   

  
	
   

  	
  o

  	
  1 month

  	
   

  
	
   

  	
  o

  	
  3 months

  	
   

  
	
   

  	
  o

  	
  6 months

  	
   

  
	
   

  	
  o

  	
  12 months (if available)

  	
   

  



 


The Borrower hereby certifies to the Agent
and the Lenders that as of the date hereof, as of the proposed date of the
requested Continuation, and after giving effect to such Continuation, no
Default or Event of Default exists or will exist.


 


If notice of the requested Continuation was
given previously by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.9. of the Credit Agreement.


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


F-2





















 


EXHIBIT G


 


FORM OF NOTICE OF CONVERSION


 


            ,
200  


 


Wachovia Bank,
National Association, 

as Agent


301 South College Street, NC0172


Charlotte, North Carolina 28288


Attention:  David M. Blackman


 


Ladies and Gentlemen:


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of January   , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among HRPT Properties Trust (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


Pursuant to Section 2.10.
of the Credit Agreement, the Borrower hereby requests
a Conversion of a borrowing of Revolving Loans of one Type into Revolving Loans
of another Type under the Credit Agreement, and in that connection sets forth
below the information relating to such Conversion as required by such Section of
the Credit Agreement:


 


1.                                       The
proposed date of such Conversion is
                          ,
200  .


 


2.                                       The
Revolving Loans to be Converted pursuant hereto are currently:


 


	
   

  	
  [Check one box only]

  	
  o

  	
  Base Rate Loans

  	
   

  	
   

  
	
   

  	
  o

  	
  LIBOR Loans

  	
   

  	
   

  



 


3.                                       The
aggregate principal amount of Revolving Loans subject to the requested
Conversion is $                     
and was originally borrowed by the Borrower on                        ,
200  .


 


4.                                       The
portion of such principal amount subject to such Conversion is
$                              .


 


G-1





















 


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


 


[Check one
box only]


 


o      Base Rate Loans


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


 


	
   

  	
  [Check
  one box only]

  	
  o

  	
  7 days

  	
   

  
	
   

  	
  o

  	
  1 month

  	
   

  
	
   

  	
  o

  	
  3 months

  	
   

  
	
   

  	
  o

  	
  6 months

  	
   

  
	
   

  	
  o

  	
  12 months (if available)

  	
   

  



 


The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the requested Conversion and after giving
effect thereto, (a) no Default or Event of Default exists or will exist,
and (b) the representations and warranties made or deemed made by the
Borrower and each other Loan Party in the Loan Documents to which any of them
is a party are and shall be true and correct in all material respects, except
to the extent that such representations and warranties expressly relate solely
to an earlier date (in which case such representations and warranties were true
and correct on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Credit Agreement.


 


If notice of the requested Conversion was
given previously by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.10. of the Credit Agreement.


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


G-2





















 


EXHIBIT H


 


FORM OF NOTICE OF SWINGLINE
BORROWING


 


              ,
       


 


Wachovia Bank,
National Association, 

as Agent


301 South College Street, NC0172


Charlotte, North Carolina 28288


Attention:  David M. Blackman


 


Ladies and Gentlemen:


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of January   , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among HRPT Properties Trust (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


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


 


2.                                       The
Borrower requests that such Swingline Loan be made available to the Borrower on
            , 200  .


 


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


 


The Borrower hereby certifies to the Agent
and the Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after giving effect thereto, (a) the
proceeds of such Swingline Loan are to be used for purposes permitted under Section 7.8.
of the Credit Agreement, (b) no Default or Event of Default exists or will
exist, and (c) the representations and warranties made or deemed made by
the Borrower and each other Loan Party in the Loan Documents to which any of
them is a party are and shall be true and correct in all material respects,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
were true and correct on and as of such earlier date) and except for changes in
factual circumstances specifically and expressly permitted under the Credit
Agreement.  In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Swingline Loan contained in Article V. of the Credit Agreement
will have been satisfied at the time such Swingline Loan is made.


 


H-1





















 


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


 


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


 


	
   

  	
  HRPT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


H-2





















 


EXHIBIT I


 


FORM OF SWINGLINE NOTE


 


	
  $50,000,000.00

  	
   

  	
  January     , 2005

  



 


FOR VALUE
RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland real estate
investment trust (the “Borrower”), hereby promises to pay to the order of WACHOVIA
BANK, NATIONAL ASSOCIATION (the “Swingline Lender”) at its address at 301 South College Street, NC0172, Charlotte,
North Carolina 28288, or at such other address as may be specified in
writing by the Swingline Lender to the Borrower, the principal sum of FIFTY
MILLION AND NO/100 DOLLARS ($50,000,000.00) (or such lesser amount as shall
equal the aggregate unpaid principal amount of Swingline Loans made by the
Swingline Lender to the Borrower under the Credit Agreement), on the dates and
in the principal amounts provided in the Credit Agreement, and to pay interest
on the unpaid principal amount owing hereunder, at the rates and on the dates
provided in the Credit Agreement.


 


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


 


This Note is
the Swingline Note referred to in the Amended and Restated Credit Agreement
dated as of January     , 2005 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
Wachovia Bank, National Association, as Agent, and the other parties thereto,
and evidences Swingline Loans made to the Borrower thereunder.  Terms used but not otherwise defined in this
Note have the respective meanings assigned to them in the Credit Agreement.


 


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


 


Except as
permitted by Section 12.5. of the Credit Agreement, this Note may not be
assigned by the Swingline Lender to any Person.


 


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


 


I-1





















 


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


 


Time is of the
essence for this Note.


 


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


 


	
   

  	
  HRPT
  PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


I-2





















 


SCHEDULE OF SWINGLINE LOANS


 


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


 


	
  Date of Loan

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Amount
  Paid

  or Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-3





















 


EXHIBIT J


 


FORM OF REVOLVING NOTE


 


	
  $                    

  	
   

  	
   

  	
  January     , 2005

  



 


FOR VALUE
RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland real estate
investment trust (the “Borrower”), hereby promises to pay to the order of                    (the
“Lender”), in care of Wachovia Bank, National Association, as Agent (the “Agent”)
at 301 South College Street, NC0172, Charlotte, North Carolina 28288, or at
such other address as may be specified in writing by the Agent to the Borrower,
the principal sum of                    AND     /100
DOLLARS ($               )
(or such lesser amount as shall equal the aggregate unpaid principal amount of
Revolving Loans made by the Lender to the Borrower under the Credit Agreement
(as herein defined)), on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount owing
hereunder, at the rates and on the dates provided in the Credit Agreement.


 


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


 


This Note is
one of the Revolving Notes referred to in the Amended and Restated Credit
Agreement dated as of January     , 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
the Agent, and the other parties thereto. 
Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.


 


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


 


Except as
permitted by Section 12.5. of the Credit Agreement, this Note may not be
assigned by the Lender to any Person.


 


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


 


J-1





















 


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


 


Time is of the
essence for this Note.


 


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


 


	
   

  	
  HRPT
  PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


J-2





















 


SCHEDULE OF
REVOLVING LOANS


 


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


 




	
  Date of

  Loan

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Interest

  Rate

  	
   

  	
  Maturity

  Date

  	
   

  	
  Amount

  Paid or

  Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


J-3





















 


EXHIBIT K


 


FORM OF COMPLIANCE CERTIFICATE


 


               , 200  


 


Wachovia Bank, National Association, 

as Agent


301 South College Street,
NC0172


Charlotte, North Carolina 28288


 


Each of the Lenders Party to the Credit

Agreement referred to below


 


Ladies and Gentlemen:


 


Reference is
made to that certain Amended and Restated Credit Agreement dated as of
January     , 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among HRPT Properties Trust (the “Borrower”), the financial institutions
party thereto and their assignees under Section 12.5. thereof (the “Lenders”),
Wachovia Bank, National Association, as Agent (the “Agent”) and the other
parties thereto.  Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.


 


Pursuant to
Section 8.3. of the Credit Agreement, the undersigned hereby certifies to the
Agent and the Lenders as follows:


 


(1)                                  The
undersigned is the                    of
the Borrower.


 


(2)                                  The
undersigned has examined the books and records of the Borrower and has
conducted such other examinations and investigations as are reasonably
necessary to provide this Compliance Certificate.


 


(3)                                  No
Default or Event of Default exists [if such is not the case,
specify such Default or Event of Default and its nature, when it occurred and
whether it is continuing and the steps being taken by the Borrower with respect
to such event, condition or failure].


 


(4)                                  The
representations and warranties made or deemed made by the Borrower and the
other Loan Parties in the Loan Documents to which any is a party, are true and
correct in all material respects on and as of the date hereof except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and correct on and as of such earlier date) and except for changes in
factual circumstances specifically and expressly permitted under the Credit Agreement.


 


K-1





















 


(5)                                  Attached
hereto as Schedule 1 are reasonably detailed calculations establishing
whether or not the Borrower and its Subsidiaries were in compliance with the
covenants contained in Sections 9.1. through 9.3. and 9.6. of the Credit
Agreement.


 


IN WITNESS
WHEREOF, the undersigned has executed this certificate as of the date first
above written.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


K-2





















 


Schedule 1


 


[Calculations to be Attached]


 


K-3