Exhibit 10.1





Exhibit 10.1




EXECUTION COPY




UNSECURED CREDIT AGREEMENT




DATED AS OF JULY 14, 2011



AMONG




BIOMED REALTY, L.P.,

AS BORROWER




AND




KEYBANK NATIONAL ASSOCIATION,

AS ADMINISTRATIVE AGENT AND CO-LEAD ARRANGER




AND




WELLS FARGO BANK NATIONAL ASSOCIATION,

AS SYNDICATION AGENT




AND




WELLS FARGO SECURITIES, LLC

AS CO-LEAD ARRANGER




AND




U.S. BANK NATIONAL ASSOCIATION,

AS DOCUMENTATION AGENT




AND




THE SEVERAL LENDERS

FROM TIME TO TIME PARTIES HERETO,

AS LENDERS



 


 









 





UNSECURED CREDIT AGREEMENT




Dated as of July 14, 2011




This UNSECURED CREDIT AGREEMENT is entered into as of July 14, 2011 (the “Agreement Effective
Date”) by and among BIOMED REALTY, L.P., a Maryland limited partnership (“Borrower” or “Operating
Partnership”), KEYBANK NATIONAL ASSOCIATION, a national banking association (“KeyBank”), each
lender whose name is set forth on the signature pages of this Agreement, and each lender which may
hereafter become a party to this Agreement pursuant to Section 2.8 or Section 11.8
(collectively, together with KeyBank, the “Lenders” and, individually, a “Lender”) and KEYBANK
NATIONAL ASSOCIATION, not individually but as “Administrative Agent.”



RECITALS




WHEREAS, Borrower has requested that the Lenders provide an unsecured revolving credit
facility to Borrower; and




WHEREAS, the Lenders are willing to do so on the terms set forth in this Agreement.



NOW, THEREFORE, in consideration of the recitals herein and the mutual covenants contained
herein, the parties hereto hereby agree as follows:



ARTICLE 1




DEFINITIONS AND ACCOUNTING TERMS




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



“Absolute Interest Period” means, with respect to a Competitive Bid Loan made at an
Absolute Rate, a period of from one to one hundred-eighty days as requested by Borrower in a
Competitive Bid Quote Request and confirmed by a Lender in a Competitive Bid Quote but in no event
extending beyond the Maturity Date. If an Absolute Interest Period would end on a day which is not
a Banking Day, such Absolute Interest Period shall end on the next succeeding Banking Day.



“Absolute Rate” means a fixed rate of interest (rounded to the nearest 1/100 of 1%)
for an Absolute Interest Period with respect to a Competitive Bid Loan offered by a Lender and
accepted by the Borrower at such rate in accordance with Section 2.4 hereof.



“Adjusted EBITDA” means, as of any date, (a) EBITDA with respect to the Consolidated
Group for the most recent Fiscal Quarter for which financial results have been reported less (b)
Capital Reserves divided by four (4).



“Adjusted NOI” means, as of any date with respect to any Project or group of Projects,
an annualized amount determined by multiplying four (4) times NOI of such Project or group of
Projects for the most recent Fiscal Quarter for which financial results have been reported and
deducting therefrom the then-current annualized Capital Reserves with respect to such Project
or group of Projects.


 


 









 





“Adjusted Unencumbered NOI” means, as of any date, Adjusted NOI attributable to
Unencumbered Projects, provided that, with respect to any such Unencumbered Projects that were
either (i) acquired by the Consolidated Group after the first day of the Fiscal Quarter on which
such Adjusted NOI is based, or (ii) first opened for occupancy after the first day of such Fiscal
Quarter, the Adjusted NOI for such Project for such Fiscal Quarter shall be deemed to be increased
by the per diem Adjusted NOI for such Project after acquisition or opening times the number of days
in such Fiscal Quarter prior to the date of acquisition or the date such Project was first opened
for occupancy.



“Administrative Agent” means KeyBank, when acting in its capacity as the
Administrative Agent under any of the Loan Documents, or any successor Administrative Agent.



“Administrative Agent’s Office” means the Administrative Agent’s office located at 127
Public Square, Cleveland, Ohio 44114, or such other office as the Administrative Agent hereafter
may designate by written notice to Borrower and the Lenders.



“Advance” means any advance made or to be made by any Lender to Borrower as provided
in Article 2, including each Competitive Bid Advance, Base Rate Advance and LIBOR Rate
Advance.




“Affected Lender” is defined in Section 11.8(f).



“Affiliate” means, as to any Person, any other Person which directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As used in this
definition, “control” (and the correlative terms, “controlled by” and “under common control with”)
shall mean possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise); provided that, in any event, any Person which owns,
directly or indirectly, 10% or more of the securities having ordinary voting power for the election
of directors or other governing body of a corporation, or 10% or more of the partnership or other
ownership interests of any other Person, will be deemed to be an Affiliate of such corporation,
partnership or other Person, provided, however, in no event shall the Administrative Agent or any
Lender or any of their respective Affiliates be an Affiliate of the Borrower.



“Aggregate Commitment” means, subject to Section 2.7 and Section 2.8,
Seven Hundred Fifty Million Dollars ($750,000,000). The respective Commitments and Percentages of
the Lenders with respect to the Aggregate Commitment are set forth on Schedule 1.1.



“Agreement” means this Unsecured Credit Agreement, either as originally executed or as
it may from time to time be extended, supplemented, consolidated, amended, restated, increased,
renewed or modified.



“Applicable Margin” means, as of any date, the interest rate margin set forth on
Schedule 1.2 attached hereto and made a part hereof in the LIBOR Rate Margin column with
respect to LIBOR Rate Loans or in the Base Rate Margin column with respect to Base Rate Loans, as
the case may be, opposite Guarantor’s then-current Credit Rating.


 


- 2 -









 





“ASC 805” means Accounting Standards Codification section 805 Business Combinations as
issued by the Financial Accounting Standards Board.



“Banking Day” means (i) with respect to any borrowing, payment or rate selection of
LIBOR Rate Advances, a day (other than a Saturday or Sunday) on which banks generally are open in
Cleveland, Ohio, and New York, New York for the conduct of substantially all of their commercial
lending activities and on which dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally
are open in Cleveland, Ohio, and New York, New York for the conduct of substantially all of their
commercial lending activities.



“Base Rate” means, as of any date of determination, the rate per annum equal to the
highest of (a) the Prime Rate in effect on such date plus the then-current “Base Rate Margin” as
set forth in Schedule 1.2 and (b) the Federal Funds Effective Rate in effect on such date
plus one-half of 1% (50 basis points) plus the then-current “Base Rate Margin” set forth in
Schedule 1.2, and (c) the LIBOR Base Rate for a one-month LIBOR Period commencing on such
date plus the then-current “LIBOR Rate Margin” set forth in Schedule 1.2.



“Base Rate Advance” means an Advance made hereunder and specified to be a Base Rate
Advance in accordance with Article 2.



“Base Rate Loan” means a Loan made hereunder and specified to be a Base Rate Loan in
accordance with Article 2.



“BioMed Pro Rata Share” means, with respect to any member of the Consolidated Group
that is not a Wholly-Owned Subsidiary of Borrower and/or Parent, the percentage of the issued and
outstanding stock, partnership interests or membership interests held by Borrower and Guarantor, in
the aggregate, directly or indirectly, in such member of the Consolidated Group.



“Borrowing Date” means any Banking Day on which a Loan is requested to be made
hereunder.



“Capital Lease Obligations” means all monetary obligations of a Person under any
leasing or similar arrangement which, in accordance with Generally Accepted Accounting Principles,
is classified as a capital lease, other than those obligations so classified solely as a result of
ASC 805.



“Capital Reserves” means, as of any date with respect to any Income-Producing Project
or group of Income-Producing Projects, an annual amount equal to (i) $0.30 per square foot of the
aggregate Net Rentable Area of those Income-Producing Projects owned by a member of the
Consolidated Group as of the last day of the most recent Fiscal Quarter for which financial results
have been reported and (ii) the applicable Consolidated Group Pro Rata Share of $0.30 per square
foot of the Net Rentable Area of those Income-Producing Projects owned by an Investment Affiliate
as of the last day of such Fiscal Quarter.



“Capitalization Rate” means (i) seven and three-quarters percent (7.75%) with respect
to all Projects other than the CFLS Project. or (ii) six and one-half percent (6.50%) with respect
to the CFLS Project.


 


- 3 -









 






“Cash Equivalents” means, as of any date:




(i) securities issued or directly and fully guaranteed or insured by the United States
of America government or any agency or instrumentality thereof having maturities of not more
than one year from such date;




(ii) mutual funds organized under the United States Investment Company Act of 1940, as
amended, rated AAm or AAm-G by S&P and P-1 by Moody’s;




(iii) certificates of deposit or other interest-bearing obligations of a bank or trust
company which is a member in good standing of the Federal Reserve System having a short term
unsecured debt rating of not less than A-1 by S&P and not less than P-1 by Moody’s (or in
each case, if no bank or trust company is so rated, the highest comparable rating then given
to any bank or trust company, but in such case only for funds invested overnight or over a
weekend) provided that such investments shall mature or be redeemable upon the option of the
holders thereof on or prior to a date one month from the date of their purchase;




(iv) certificates of deposit or other interest-bearing obligations of a bank or trust
company which is a member in good standing of the Federal Reserve System having a short term
unsecured debt rating of not less than A-1+ by S&P, and not less than P-1+ by Moody’s and
which has a long term unsecured debt rating of not less than A1 by Moody’s (or in each case,
if no bank or trust company is so rated, the highest comparable rating then given to any
bank or trust company, but in such case only for funds invested overnight or over a weekend)
provided that such investments shall mature or be redeemable upon the option of the holders
thereof on or prior to a date three months from the date of their purchase;




(v) bonds or other obligations having a short term unsecured debt rating of not less
than A-1+ by S&P and P-1+ by Moody’s and having a long term debt rating of not less than A1
by Moody’s issued by or by authority of any state of the United States of America, any
territory or possession of the United States of America, including the Commonwealth of
Puerto Rico and agencies thereof, or any political subdivision of any of the foregoing;




(vi) repurchase agreements issued by an entity rated not less than A-1+ by S&P, and not
less than P-1 by Moody’s which are secured by United States of America government securities
of the type described in clause (i) of this definition maturing on or prior to a date one
month from the date the repurchase agreement is entered into;




(vii) short term promissory notes rated not less than A-1+ by S&P, and not less than
P-1 by Moody’s maturing or to be redeemable upon the option of the holders thereof on or
prior to a date one month from the date of their purchase; and




(viii) commercial paper (having original maturities of not more than 365 days) rated at
least A-1+ by S&P and P-1 by Moody’s and issued by a foreign or domestic issuer who, at the
time of the investment, has outstanding long-term unsecured debt obligations rated at least
A1 by Moody’s.


 


- 4 -









 





“Certificate” means a certificate signed by a Senior Officer or Responsible Official
(as applicable) of the Person providing the certificate.



“CFLS Project” means that certain Project known as the Center for Life Sciences
Building located at 3 Blackfan Street, Boston, Massachusetts, consisting of approximately 1.520
acres of land on which an eighteen (18) story office building/laboratory research center containing
approximately 704,159 rentable square feet has been completed and which is owned in fee simple by a
Wholly-Owned Subsidiary of Borrower.



“Closing Date” means the time and Banking Day on which the conditions set forth in
Section 8.1 are satisfied or waived. The Administrative Agent shall notify Borrower and
the Lenders of the date that is the Closing Date.



“Code” means the Internal Revenue Code of 1986, as amended or replaced and as in
effect from time to time.



“Commitment” means the commitment of each of the Lenders (as initially specified in
Schedule 1.1 hereto) to make Advances to fund Loans on a revolving basis under Section
2.1(a) or under Section 2.4 and to participate in Letters of Credit issued under
Section 2.6 and Swing Loans made under Section 2.5, as such commitment may increase
or decrease pursuant to the terms of this Agreement.



“Commitment Assignment and Acceptance” means an assignment and acceptance agreement
substantially in the form of Exhibit A.



“Competitive Bid Advance” means any Advance made from time to time to Borrower
hereunder on a non-pro rata basis by a Lender pursuant to Section 2.4.




“Competitive Bid Borrowing Notice” is defined in Section 2.4(f).



“Competitive Bid Lender” means a Lender or Designated Lender which has a Competitive
Bid Advance outstanding.



“Competitive Bid Loan” means a Loan to Borrower funded by Competitive Bid Advances
from one or more Lenders made pursuant to Section 2.4.



“Competitive Bid Note” means the promissory note payable to the order of each
Competitive Bid Lender in the form attached hereto as Exhibit D-2 to be used to evidence
any Competitive Bid Loans which such Competitive Bid Lender elects to make (collectively, the
“Competitive Bid Notes”).



“Competitive Bid Quote” means a response submitted by a Lender to the Administrative
Agent or the Borrower, as the case may be with respect to an Invitation for Competitive Bid Quotes
in the form attached as Exhibit C-3.



“Competitive Bid Quote Request” means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.


 


- 5 -









 





“Competitive LIBOR Margin” means, with respect to any Competitive Bid Loan for a LIBOR
Interest Period, the percentage established in the applicable Competitive Bid Quote which is to be
used to determine the interest rate applicable to such Competitive Bid Loan.



“Competitive LIBOR Rate” means, as of any date during any LIBOR Period with respect
to a Competitive Bid Loan based on a Competitive LIBOR Margin, the sum of (A) the LIBOR Base Rate
applicable to such LIBOR Period divided by one minus the then-current Reserve Percentage and (B)
the Competitive LIBOR Margin established in the Competitive Bid Quote applicable to such
Competitive Bid Loan.



“Compliance Certificate” means a certificate in the form of Exhibit B,
properly completed and signed by a Senior Officer of Borrower.



“Confidential Information” means (i) all of the terms, covenants, conditions or
agreements set forth in this Agreement or any amendments hereto and any related agreements of
whatever nature, (ii) the information and reports provided in compliance with Article 7 of
this Agreement, (iii) any and all information provided, disclosed or otherwise made available to
the Administrative Agent and the Lenders including, without limitation, any and all plans, maps,
studies (including market studies), reports or other data, operating expense information, as-built
plans, specifications, site plans, drawings, notes, analyses, compilations, or other documents or
materials relating to the Projects or their condition or use, whether prepared by Borrower or
others, which use, or reflect, or that are based on, derived from, or are in any way related to the
foregoing, and (iv) any and all other information of Parent, its Subsidiaries or the Investment
Affiliates that the Administrative Agent or any Lender may have access to including, without
limitation, ideas, samples, media, techniques, sketches, specifications, designs, plans, forecasts,
financial information, technical information, drawings, works of authorship, models, inventions,
know-how, processes, apparatuses, equipment, algorithms, financial models and databases, software
programs, software source documents, manuals, documents, properties, names of tenants or potential
tenants, vendors, suppliers, distributors and consultants, and formulae related to the current,
future, and proposed products and services of Parent, its Subsidiaries, the Investment Affiliates,
tenants or potential tenants (including, without limitation, information concerning research,
experimental work, development, design details and specifications, engineering, procurement
requirements, purchasing, manufacturing, customer lists, investors, employees, clients, business
and contractual relationships, business forecasts, and sales and marketing plans). Such
Confidential Information may be disclosed or accessible to the Administrative Agent and the Lenders
as embodied within tangible material (such as documents, drawings, pictures, graphics, software,
hardware, graphs, charts, or disks), orally, or visually.



“Consolidated Group” means Parent, Borrower and all Subsidiaries of Borrower which are
consolidated with Parent and Borrower for financial reporting purposes under GAAP.



“Consolidated Group Pro Rata Share” means, with respect to any Investment Affiliate,
the percentage of the issued and outstanding stock, partnership interests or membership interests
held by the Consolidated Group in the aggregate in such Investment Affiliate.



“Consolidated Outstanding Indebtedness” means, as of any date of determination,
without duplication, the sum of (a) all Indebtedness of the Consolidated Group outstanding at such
date, determined on a consolidated basis in accordance with GAAP (whether recourse or
non-recourse), plus, without duplication, (b) the applicable Consolidated Group Pro Rata Share
of any Indebtedness of each Investment Affiliate other than Indebtedness of such Investment
Affiliate to a member of the Consolidated Group.


 


- 6 -









 





“Continuing Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project which was leasing space in such Project at all times during such
Fiscal Quarter.



“Contractual Obligation” means, as to any Person, any provision of any outstanding
security issued by that Person or of any material agreement, instrument or undertaking to which
that Person is a party or by which it or any of its Property is bound.



“Controlled Entity” means a Person (a) that is a Subsidiary of Parent, (b) that is a
general partnership or a limited partnership in which Borrower or a Wholly-Owned Subsidiary of
Borrower is the sole managing general partner and such managing general partner has the sole power
to (i) sell all or substantially all of the assets of such Person, (ii) incur Indebtedness in the
name of such Person, (iii) grant a Lien on all or any portion of the assets of such Person and (iv)
otherwise generally manage the business and assets of such Person or (c) that is a limited
liability company for which Borrower or a Wholly-Owned Subsidiary of Borrower is the sole manager
and such manager has the sole power to do the acts described in subclauses (i) through
(iv) of clause (b) above.



“Credit Rating” means, as of any date, with respect to the Guarantor and with respect
to any one of Moody’s, S&P and Fitch, the most recent credit rating of Guarantor issued by such
rating agency prior to such date, the number of Credit Ratings from specified rating agencies
required to qualify for the various Applicable Margins being set forth in Schedule 1.2 below.



“Debt Offering” means the issuance and sale by any member of the Consolidated Group of
any debt securities of such member, excluding debt securities issued to and retained by another
member of the Consolidated Group.



“Debt Service” means, for any Fiscal Quarter, the sum of all Interest Expense and all
mandatory or regularly scheduled principal payments due and payable during such Fiscal Quarter on
the related Indebtedness, excluding any balloon payments due upon maturity of such Indebtedness
(provided that Debt Service with respect to the Consolidated Group shall include only the
applicable Consolidated Group Pro Rata Share of all such principal payments for such Fiscal Quarter
with respect to Indebtedness of Investment Affiliates). Debt Service shall include the portion of
rent payable by a Person during such Fiscal Quarter under Capital Lease Obligations that should be
treated as principal in accordance with Generally Accepted Accounting Principles.



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



“Default” means any event that, with the giving of any applicable notice or passage of
time specified in Section 9.1 or both, would be an Event of Default.


 


- 7 -









 






“Default Rate” means the interest rate prescribed in Section 3.6.



“Defaulting Lender” means any Lender, as reasonably determined by the Administrative
Agent, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit
or Swing Loans within three (3) Banking Days of the date required to be funded by it hereunder,
unless such Lender notifies the Administrative Agent in writing that such failure is the result of
such Lender’s good faith determination that one or more conditions precedent to funding (which
conditions precedent, together with the applicable default, if any, shall be specifically
identified in such writing) has not been satisfied, (b) notified the Borrower, the Administrative
Agent, the Swing Loan Lender or any Lender in writing that it does not intend to comply with any of
its funding obligations under this Agreement (other than a notice of a good faith dispute or
related communications) or has made a public statement to the effect that it does not intend to
comply with its funding obligations under this Agreement or under other agreements in which it
commits to extend credit, unless such writing or public statement relates to such Lender’s
obligation to fund a Loan hereunder and states that such position is based on such Lender’s good
faith determination that one or more conditions precedent to funding (which conditions precedent,
together with the applicable default, if any, shall be specifically identified in such writing or
public statement) has not been satisfied, (c) failed, within three (3) Banking Days after request
by the Administrative Agent, to confirm in writing that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans and participations in then
outstanding Letters of Credit and Swing Loans, (d) otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within three (3) Banking Days of the date when due, unless the subject of a good faith dispute, or
(e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii)
become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian, appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its business
or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment, provided that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest
in such Lender or any direct or indirect parent company thereof by a Governmental Agency, so long
as such ownership interest does not result in or provide such Lender with immunity from the
jurisdiction of courts in the United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Lender (or such Governmental Agency) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender.



“Designated Deposit Account” means a deposit account to be maintained by Borrower with
KeyBank or one of its Affiliates, as from time to time designated by Borrower by written
notification to the Administrative Agent.



“Designated Lender” means any Person who has been designated by a Lender to fund
Competitive Bid Advances and is either an Affiliate of such Lender or another entity organized or
sponsored by such Lender.


 


- 8 -









 





“Designation Agreement” means a designation agreement entered into by a Lender (other
than a Designated Lender) and a Designated Lender, and accepted by the Administrative Agent and
Borrower, in substantially the form of Exhibit I hereto.



“Distribution” means, with respect to any shares of capital stock or any warrant or
option to purchase an equity security or other equity security or interest issued by a Person, (i)
the retirement, redemption, purchase or other acquisition for cash or for Property by such Person
of any such security or interest, (ii) the payment by such Person of any dividend in cash or in
Property (including for clarification purposes, common stock) on or with respect to any such
security or interest, (iii) any Investment by such Person in the holder of 5% or more of any such
security or interest if a purpose of such Investment is to avoid characterization of the
transaction as a Distribution or (iv) any other payment in cash or Property by such Person
constituting a distribution under applicable Laws with respect to such security or interest.




“Dollars” or “$” means United States of America dollars.



“EBITDA” means, with respect to any Person for any Fiscal Quarter, the Net Income of
such Person (from operations and from discontinued operations) for that Fiscal Quarter, before (i)
interest, income taxes, minority interests, Preferred Distributions, depreciation and amortization,
(ii) provisions for gains and losses on sale of investments and joint ventures, (iii) provisions
for gains and losses on the disposition of discontinued operations, (iv) rent adjustments and
amortization of intangibles required by acquisition accounting rules pursuant to GAAP, (v)
transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP (vi) impairment
charges, property valuation losses, gains and/or losses related to the extinguishment of debt and
non-cash charges necessary to record interest rate contracts at fair value, (vii) all other
non-cash expenses (including non-cash compensation, non-cash severance and other non-cash
restructuring charges, to the extent not actually paid as a cash expense), (viii) extraordinary or
non-recurring items, and (ix) the effect of any adjustment resulting from a change in accounting
principles in determining Net Income for such period of such Person for that Fiscal Quarter, in
each case as determined on a consolidated basis in accordance with Generally Accepted Accounting
Principles; provided, that in performing the foregoing calculation of EBITDA with respect
to the Consolidated Group, that portion of EBITDA attributable to the Consolidated Group’s equity
interests in any Investment Affiliates shall be deducted, and the applicable Consolidated Group Pro
Rata Share of EBITDA in each such Investment Affiliate shall be added back into the calculation.



“Eligible Assignee” means (a) another Lender, (b) with respect to any Lender, any
Affiliate of that Lender, (c) any commercial bank having a combined capital and surplus of
$5,000,000,000 or more, (d) the central bank of any country which is a member of the Organization
for Economic Cooperation and Development, (e) any savings bank, savings and loan association or
similar financial institution which (A) has a net worth of $500,000,000 or more, (B) is engaged in
the business of lending money and extending credit under credit facilities substantially similar to
those extended under this Agreement and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a commercial bank, and (f) any other
financial institution (including a mutual fund or other fund) approved by the Administrative Agent
and, unless an Event of Default shall have occurred and be continuing, by Borrower (which approval
shall not be unreasonably withheld and may be deemed given under certain circumstances


 


- 9 -









 





as set forth
below), having total assets of $500,000,000 or more which meets the requirements set forth in subclauses (B) and
(C) of clause (e) above; provided that each Eligible Assignee must either
(a) be organized under the Laws of the United States of America, any State thereof or the District
of Columbia or (b) be organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a political subdivision of
such a country, and (i) act hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21. If the Administrative Agent requests
in writing the approval of Borrower to a proposed assignment under the preceding sentence, Borrower
shall respond and either approve or disapprove definitively in writing to the Administrative Agent
within five (5) Banking Days after such written request from the Administrative Agent. If Borrower
does not so respond to the Administrative Agent within such period, the Administrative Agent may
issue a second request in writing to Borrower for such approval, which shall include in the heading
a notice in capital letters that such request is a second request and that Borrower’s approval
shall be deemed to have been given if no response is received by the Administrative Agent within
five (5) Banking Days after such second request. If Borrower fails to so respond to such second
request within such period of five (5) Banking Days, Borrower shall be deemed to have approved the
proposed assignment. Notwithstanding anything herein to the contrary neither the Parent nor the
Borrower nor any Affiliate of the Parent or the Borrower shall qualify as an “Eligible Assignee”.



“Employee Plan” means any (a) employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to Title I of ERISA, (b) any plan (as defined in Section 4975(e)(1) of the
Code) that is subject to Section 4975 of the Code, (c) any entity the underlying assets of which
include plan assets (as defined in 29 C.F.R. Section 2510.3-101 or otherwise under ERISA) by reason
of a plan’s investment in such entity (including an insurance company general account), or (d) a
governmental plan (as defined in Section 3(32) of ERISA or Section 414(d) of the Code) organized in
a jurisdiction within the United States of America having prohibitions on transactions with such
governmental plan substantially similar to those contained in Section 406 of ERISA or Section 4975
of the Code.



“Equity Offering” means the issuance and sale by any member of the Consolidated Group
of any equity securities of such member, excluding equity securities issued to and retained by
another member of the Consolidated Group.



“ERISA” means the Employee Retirement Income Security Act of 1974, and any regulations
issued pursuant thereto, as amended or replaced and as in effect from time to time.



“ERISA Affiliate” means each Person (whether or not incorporated) which is required to
be aggregated with Parent pursuant to Section 414 of the Code.




“Event of Default” shall have the meaning provided in Section 9.1.



“Excluded Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project (i) whose lease expired or was terminated during such Fiscal
Quarter or (ii) which either defaulted in the payment of any of its base rental obligations during
such Fiscal Quarter (and such payment default is continuing after all required notices have been
given and all applicable cure periods provided for in such lease have expired) or was the debtor
in a voluntary or involuntary proceeding under any Debtor Relief Law during such Fiscal
Quarter.


 


- 10 -









 





“Existing Letters of Credit” means those letters of credit issued by the
Administrative Agent under the Prior Agreement which remain outstanding on the Agreement Effective
Date, as shown on Schedule 1.3 attached hereto and made a part hereof, and which shall be deemed
for all purposes hereunder to be Letters of Credit issued hereunder from and after the Agreement
Effective Date.



“Facility” means the Loans, Swing Loans and Letters of Credit made available to
Borrower hereunder from time to time by the Lenders.




“Facility Fee” is defined in Section 3.3.



“Facility Fee Percentage” means, as of any date, the percentage set forth in
Schedule 1.2 opposite the Guarantor’s then-current Credit Rating.



“Federal Funds Effective Rate” shall mean, for any day, the rate per annum announced
by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the previous trading day,
as computed and announced by such Federal Reserve Bank in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds
Effective Rate.”



“Fee Letter” means that certain fee letter dated as of May 16, 2011 among Borrower,
the Syndication Agent, the Administrative Agent and the Co-Lead Arrangers.



“Fiscal Quarter” means the fiscal quarter of the Consolidated Group ending on each
March 31, June 30, September 30 and December 31.




“Fiscal Year” means the fiscal year of Borrower ending on each December 31.




“Fitch” means Fitch Ratings and its successors.



“Fixed Charge Coverage Ratio” means, as of any date, (a) Adjusted EBITDA divided by
(b) the sum of (i) Debt Service with respect to the Consolidated Group plus (ii)
all Preferred Distributions of the Consolidated Group plus (iii) the Consolidated Group Pro
Rata Share of all Preferred Distributions of Investment Affiliates, in each case based on the most
recent Fiscal Quarter for which financial results have been reported.



“Funds From Operations” with respect to any fiscal period means (i) Net Income (or, if
applicable, net deficit under GAAP)); (ii) less gains from property sales; (iii)
plus losses from property sales; (iv) plus depreciation and amortization, including
applicable amounts attributed from Projects owned by Investment Affiliates; (v) plus
Preferred Distributions; and (vi) plus minority interest of exchangeable operating
partnership units as provided under GAAP, but, in each case under clauses (ii) through (vi) without
duplication and only to the extent that such items were included in or excluded from the
determination of Net Income or net deficit, as applicable. For purposes of calculating Funds From
Operations, gains and/or losses related to the extinguishment of debt and derivatives will be
excluded.


 


- 11 -









 





“Funded Percentage” means, with respect to any Lender at any time, a percentage equal
to a fraction the numerator of which is the amount actually disbursed and outstanding to Borrower
by such Lender at such time (including Swing Line Loans and Competitive Bid Advances), and the
denominator of which is the total amount disbursed and outstanding to Borrower by all of the
Lenders at such time (including Swing Line Loans and Competitive Bid Advances).



“Generally Accepted Accounting Principles” or “GAAP” means, as of any date of
determination, accounting principles (a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently effective Statements of the
Financial Accounting Standards Board or (c) that are then approved by such other entity as may be
approved by a significant segment of the accounting profession in the United States of America.
The term “consistently applied,” as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those applied at prior dates or for
prior periods. To the extent that any change in GAAP promulgated subsequent to the Agreement
Effective Date would cause a material change in the calculated result of any covenant that is
adverse to Borrower and Guarantor, such change will not be incorporated in the calculation of the
covenants (i.e., the covenants will be calculated in the same manner as before the material
change), as provided in Section 1.3 below.



“Governmental Agency” means (a) any international, foreign, federal, state, county or
municipal government, or political subdivision thereof, (b) any governmental or quasi-governmental
agency, authority, board, bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal, each of competent jurisdiction.



“Gross Asset Value” means, as of any day, an amount equal to the sum of the following
assets then owned by a member of the Consolidated Group or an Investment Affiliate and valued as
follows: (i) Adjusted NOI attributable to Projects owned by a member of the Consolidated Group (or
the Consolidated Group Pro Rata Share thereof with respect to Projects owned by an Investment
Affiliate) (excluding any such portion of such Adjusted NOI attributable to (a) Projects that were
Unstabilized Projects at any time during the Fiscal Quarter with respect to which Adjusted NOI is
determined, (b) Projects acquired after the first day of such Fiscal Quarter, or (c) Projects
disposed of during or after such Fiscal Quarter), divided by the Capitalization Rate;
plus, without duplication, (ii) with respect to each such Project that was an Unstabilized
Project, the greater of (a) the portion of such Adjusted NOI attributable to such Project (or the
Consolidated Group Pro Rata Share thereof with respect to any such excluded Project owned by an
Investment Affiliate), divided by the Capitalization Rate and (b) the Consolidated Group’s
GAAP cost basis (or the Consolidated Group Pro Rata Share thereof with respect to any such excluded
Project owned by an Investment Affiliate) in such Project; plus (iii) the Consolidated
Group’s GAAP cost basis of all Projects acquired after the first day of such Fiscal Quarter and on
or prior to such date of determination (or the Consolidated Group Pro Rata Share thereof with
respect to any such acquired Project owned by an Investment Affiliate); plus (iv) the
Consolidated Group’s GAAP cost basis of all raw land held for development as of such date (or the
Consolidated Group Pro Rata Share thereof with respect to any such land owned by an Investment
Affiliate) (provided that the amount contributed to Gross Asset Value under this clause (iv) shall
not exceed 10% of the total Gross Asset Value); plus (v) cash and Cash Equivalents of the
Consolidated Group as of such date of determination. For purposes of
determining Gross Asset Value, Projects with negative Adjusted NOI shall be excluded from
clause (i) of the preceding sentence.


 


- 12 -









 






“Guarantor” means Parent.



“Guarantee” or “Guaranteed Obligation” means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any other Person or (b)
assurance given by that Person to an obligee of any other Person with respect to the performance of
an obligation by, or the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such obligation or any
collateral security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the solvency or level of
any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever
nature given for the purpose of assuring or holding harmless such obligee against loss with respect
to any obligation of such other Person; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation in respect of Indebtedness shall be
deemed to be an amount equal to the stated or determinable amount of the related Indebtedness
(unless the Guarantee Obligation is limited by its terms to a lesser amount, in which case to the
extent of such amount) or, if not stated or determinable, the reasonably anticipated liability in
respect thereof as determined by the Person in good faith pursuant to Generally Accepted Accounting
Principles.



“Guaranty” means that certain Parent Guaranty dated as of the Agreement Effective Date
executed by Parent in the form attached hereto as Exhibit H and made a part hereof.



“Hazardous Materials” means substances defined as “hazardous substances” pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601
et seq., or as “hazardous”, “toxic” or “pollutant” substances or as “solid waste” pursuant to the
Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. §6901, et seq., or as “friable asbestos” pursuant to the Toxic Substances
Control Act, 15 U.S.C. §2601 et seq. or any other applicable Hazardous Materials Law, in each case
as such Laws are amended from time to time.



“Hazardous Materials Laws” means all Laws governing the treatment, transportation or
disposal of Hazardous Materials applicable to any of the Projects.




“Income-Producing Project” means any Project other than an Unstabilized Project.



“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 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) Capital Lease Obligations of such Person; (d) all reimbursement obligations
of such Person under any letters of


 


- 13 -









 






credit
or acceptances (whether or not the same have been presented for payment); (e) all off-balance sheet obligations of such Person; (f)
all obligations of such Person in respect of any repurchase obligation, takeout commitment or
forward equity commitment, in each case evidenced by a binding agreement (it being understood that
the term “Indebtedness” shall not include trade payables incurred in the ordinary course of
business or obligations of such Person under purchase agreements pertaining to potential
acquisition by such Person of additional real properties (and related assets)); (g) net mark to
market exposure of such Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar agreements) and currency
swaps and similar agreements; (h) all Indebtedness of other Persons which such Person has
Guaranteed or is otherwise recourse to such Person (except for guaranties of customary non-recourse
“carve-out” exceptions for fraud, misapplication of funds, failure to procure insurance, failure to
pay property taxes, the unauthorized sale of a Project, the applicable lender’s costs of
enforcement of its loan documents, protective advances made by a lender, voluntary bankruptcy,
environmental indemnities and other similar exceptions to recourse liability (but not exceptions
relating to involuntary bankruptcy, insolvency, receivership or other similar events)); and (i) all
Indebtedness of another Person secured by any Lien on Property owned by such Person, even though
such Person has not assumed or become liable for the payment of such Indebtedness or other payment
obligation, provided however that the amount of Indebtedness attributed to the Person owning the
Property subject to such Lien shall be limited to the value of such Property. For the avoidance of
doubt, Indebtedness shall not include premiums or discounts related to ASC 805 or arising from the
terms of any senior unsecured debt issued by Borrower.



“Intangible Assets” means assets that are considered intangible assets under Generally
Accepted Accounting Principles, including customer lists, goodwill, copyrights, trade
names, trademarks and patents.



“Interest Expense” means, with respect to the Consolidated Group and measured as of
the last day of the most recent Fiscal Quarter for which financial results have been reported, the
sum of (a) all interest of the Consolidated Group (whether accrued or paid, without duplication)
for such Fiscal Quarter reported under GAAP, less (b) any non-cash interest expense (e.g., swap
amortization, amortization of premiums or discounts), plus (c) capitalized interest due to any
Person who is not a member of the Consolidated Group which is not funded from the proceeds of a
construction loan, plus (d) the portion of rent paid or payable by the Consolidated Group (without
duplication) for such Fiscal Quarter under Capital Lease Obligations that should be treated as
interest in accordance with ASC 805, plus (e) the Consolidated Group Pro Rata Share of any interest
expense of each Investment Affiliate for such Fiscal Quarter reported under GAAP, adjusted as
described in clauses (b), (c) and (d) above.




“Interest Period” means an Absolute Interest Period or a LIBOR Period, as applicable.



“Investment” means, when used in connection with any Person, any investment by or of
that Person, whether by means of purchase or other acquisition of stock or other securities of any
other Person or by means of a loan (including a purchase money loan or the purchase of an existing
loan), advance creating a debt, capital contribution, guaranty or other debt or equity
participation or interest in any other Person, including any partnership and joint venture
interests of such Person. The amount of any Investment shall be the amount actually invested
(minus any return of capital with respect to such Investment which has actually been
received in cash or
Cash Equivalents or has been converted into cash or Cash Equivalents), without adjustment for
subsequent increases or decreases in the value of such Investment.


 


- 14 -









 





“Investment Affiliate” means any Person in which the Consolidated Group, directly or
indirectly, has either a controlling interest or a ten percent (10%) or greater ownership interest,
whose financial results, in either case, are not consolidated under GAAP with the financial results
of the Consolidated Group.



“Invitation for Competitive Bid Quotes” means a written notice to the Lenders from the
Administrative Agent in the form attached as Exhibit C-2 for Competitive Bid Loans made
pursuant to Section 2.4.



“Laws” means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial
precedents.



“Lender” means each Lender whose name is set forth in the signature pages of this
Agreement and each lender which may hereafter become a party to this Agreement pursuant to
Section 2.8 or Section 11.8.



“Letter of Credit” means a standby letter of credit which is payable upon presentation
of a sight draft and other documents, as originally issued pursuant to this Agreement or as
amended, modified, extended, renewed or supplemented thereafter, including without limitation the
Existing Letters of Credit.



“Letter of Credit Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of
all unreimbursed drawings under Letters of Credit at such time.



“Letter of Credit Fee” means the fees payable to the Lenders with respect to a Letter
of Credit as described in Section 2.6(e).




“Letter of Credit Request” means the request described in Section 2.6.



“LIBOR Base Rate” means, with respect to a LIBOR Rate Advance or a Competitive Bid
Loan based on a Competitive LIBOR Margin for the relevant LIBOR Period, the applicable British
Bankers’ Association LIBOR rate for deposits in Dollars as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two Banking Days prior to the first
day of such LIBOR Period, and having a maturity equal to such LIBOR Period, provided that, if no
such British Bankers’ Association LIBOR rate is available to the Administrative Agent, the
applicable LIBOR Base Rate for the relevant LIBOR Period shall instead be the rate determined by
the Administrative Agent to be the rate at which KeyBank or one of its Affiliate banks offers to
place deposits in Dollars with first class banks in the London interbank market at approximately
11:00 a.m. (London time) two Banking Days prior to the first day of such LIBOR Period, in the
approximate amount of the relevant LIBOR Rate Advance or Competitive Bid Loan based on a
Competitive LIBOR Margin and having a maturity equal to such LIBOR Period.



“LIBOR Lending Office” means, as to each Lender, its office or branch so designated by
written notice to Borrower and the Administrative Agent as its LIBOR Lending Office. If no
LIBOR Lending Office is designated by a Lender, its LIBOR Lending Office shall be its office
at its address for purposes of notices hereunder.


 


- 15 -









 





“LIBOR Period” means, as to each LIBOR Rate Loan, the period commencing on the date
specified by Borrower pursuant to Section 2.1(d) and ending 1, 2, 3 or 6 months (or, if
available from all Lenders, 12 months) thereafter, as specified by Borrower in the applicable
Request for Loan; provided that:




(a) the first day of any LIBOR Period shall be a Banking Day;



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



(c) any LIBOR Period which begins on a day for which there is no numerically corresponding
date in the calendar month in which such LIBOR Period would otherwise end shall instead end on the
last Banking Day of such calendar month; and




(d) no LIBOR Period shall extend beyond the Maturity Date.



“LIBOR Rate” means, as of any date during any LIBOR Period, the sum of (A) the LIBOR
Base Rate applicable to such LIBOR Period divided by one minus the then-current Reserve Percentage
and (B) the then-current Applicable Margin with respect to LIBOR Rate Loans.



“LIBOR Rate Advance” means an Advance made hereunder and specified to be a LIBOR Rate
Advance in accordance with Article 2.



“LIBOR Rate Loan” means a Loan made hereunder and specified to be a LIBOR Rate Loan in
accordance with Article 2.



“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for
security, security interest, encumbrance, lien or charge of any kind, whether voluntarily incurred
or arising by operation of Law or otherwise, affecting any Property, including any
conditional sale or other title retention agreement, any lease in the nature of a security
interest, and/or the filing of any financing statement (other than a precautionary financing
statement with respect to a lease that is not in the nature of a security interest) under the
Uniform Commercial Code or comparable Law of any jurisdiction with respect to any Property.



“Line Advance” means any Advance made from time to time to Borrower hereunder, on a
pro rata basis by a Lender pursuant to Section 2.1(a).



“Line Loan” means a Loan to Borrower under the Aggregate Commitment funded by Line
Advances from the Lenders made pursuant to Section 2.1(a).



“Line Note” means any of the promissory notes made by Borrower to a Lender holding a
Commitment evidencing Line Advances under that Lender’s Percentage of the Aggregate Commitment,
substantially in the form of Exhibit D-1, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed or extended.


 


- 16 -









 





“Loan” means the aggregate of the Advances made at any one time by the Lenders
pursuant to Section 2.1(a) or Section 2.4 and the Swing Loans made pursuant to
Section 2.5.



“Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty and any
other agreements of any type or nature hereafter executed and delivered by Borrower or Guarantor to
the Administrative Agent or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.




“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X.



“Material Adverse Effect” means (a) a material adverse change in the status of the
business, results of operations or condition (financial or otherwise) of the Consolidated Group
taken as a whole, and/or (b) any set of circumstances or events which (i) has had or would
reasonably be expected to have a material adverse effect upon the validity or enforceability of any
Loan Document (other than as a result of any action or inaction of the Administrative Agent or any
Lender), or (ii) has materially impaired or would reasonably be expected to materially impair the
ability of Borrower and the Guarantor to perform the Obligations.



“Maturity Date” means July 13, 2015 or, if the Maturity Date with respect to the
Facility is extended pursuant to Section 2.10, July 13, 2016.




“Monthly Payment Date” means the first day of each calendar month.




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



“Mortgageable Ground Lease” means any lease (a) which is a direct lease granted by the
fee owner of the applicable Project, (b) which has a remaining term, as of the date such Project
becomes an Unencumbered Project, of not less than thirty (30) years, including extension options
which are exercisable solely at the discretion of the lessee thereunder, (c) under which no
material default has occurred and is continuing, (d) with respect to which a leasehold mortgage may
be granted, and (e) which the Administrative Agent has otherwise reasonably determined is
financeable.



“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA to which one or more members of the Consolidated Group or any of their ERISA
Affiliates contribute or are obligated to contribute.



“Negative Pledge” means a Contractual Obligation that contains a covenant binding on
any owner of a Project that prohibits Liens on any of such owner’s Projects, other than any such
covenant contained in a Contractual Obligation granting or relating to a particular Lien on a
Project which prohibits further Liens on such Project and on the direct or indirect ownership
interests in the entity owning such Project.



“Net Income” means, with respect to any Person and with respect to any fiscal period,
the net income available to common stockholders of that Person for that period, determined in
accordance with Generally Accepted Accounting Principles, consistently applied.


 


- 17 -









 





“Net Rentable Area” means with respect to any Project, the floor area of any
buildings, structures or improvements available for leasing to tenants (excluding storage lockers
and parking spaces), as reasonably determined by the Administrative Agent, the manner of such
determination to be consistent for all Projects unless otherwise approved by the Administrative
Agent.



“Net Worth” means, as of any day, (a) Gross Asset Value as of such date minus
(b) Consolidated Outstanding Indebtedness as of such date.



“New Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project which first commenced leasing its premises at such Project during
the period from the second day of such Fiscal Quarter through the end of such Fiscal Quarter.



“NOI” means, with respect to any Project for any applicable Fiscal Quarter, the sum of
(i) rental income for such Fiscal Quarter attributable to Continuing Tenants and New Tenants as
included in total rental revenue reported in accordance with GAAP; (ii) with respect to any New
Tenant, an imputed amount of net rental income for those days during such Fiscal Quarter during
which such New Tenant was not leasing space and paying rent based on the per diem net rental income
being paid by such New Tenant as of the commencement of its obligation to pay rent on its lease;
(iii) all actual expense reimbursements received or receivable from such tenants for such Fiscal
Quarter; and (iv) all actual other income for such Fiscal Quarter less (A) property
operating expenses, including property taxes, for such Fiscal Quarter as included in total rental
operations expense reported in accordance with GAAP, (B) actual management fees payable with
respect to such Project for such Fiscal Quarter and (C) any actual or imputed rental income for
such Fiscal Quarter attributable to Excluded Tenants, provided, however, that in the case of any
such Project owned by an Investment Affiliate, only the Consolidated Group Pro Rata Share of the
foregoing amount attributable to such Project shall be included in “NOI”. For the avoidance of
doubt, the following shall be disregarded in the determination of NOI (to the extent such
adjustments otherwise would be included in the determination of NOI): (i) provisions for gains and
losses on sale of investments and joint ventures, (ii) provisions for gains and losses on the
disposition of discontinued operations, (iii) rent adjustments and amortization of intangibles
required by acquisition accounting rules pursuant to GAAP, (iv) transaction costs of acquisitions
not permitted to be capitalized pursuant to GAAP, (v) impairment charges, property valuation
losses, gains and/or losses related to the extinguishment of debt and non-cash charges necessary to
record interest rate contracts at fair value, (vi) all other non-cash expenses (including non-cash
compensation, non-cash severance and other non-cash restructuring charges to the extent not
actually paid as a cash expense), (vii) extraordinary or non-recurring items, and (viii) the effect
of any adjustment resulting from a change in accounting principals in determining Net Income for
such period of such Person for the Fiscal Quarter.



“Non-Recourse Indebtedness” means Indebtedness for which the liability of the obligor
thereunder (except with respect to fraud, Hazardous Materials Laws liability and other customary
non-recourse “carve-out” exceptions) either is contractually limited to collateral securing such
Indebtedness or is so limited by operation of Law.



“Notes” means, collectively, the Line Notes, the Competitive Bid Notes and the Swing
Loan Note.


 


- 18 -









 





“Obligations” means all present and future obligations of every kind or nature of the
Borrower or Guarantor at any time and from time to time owed to the Administrative Agent or the
Lenders or any one or more of them, under any one or more of the Loan Documents, whether due or to
become due, matured or unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment, and
including interest that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against any member of the Consolidated Group.




“Offer” is defined in Section 2.4(d)(i).



“One Day LIBOR Rate” means, with respect to Swing Loans only, for any day, the sum of
(A) an interpolated rate, as determined by the Swing Loan Lender in its sole discretion for such
day, equal to the LIBOR Base Rate that would apply to a LIBOR Period of one day divided by one
minus the then-current Reserve Percentage and (B) the then-current Applicable Margin with respect
to LIBOR Rate Loans.



“Opinions of Counsel” means the favorable written legal opinions of Latham & Watkins
LLP and Venable LLP, counsel to Borrower and Guarantor, in form and substance reasonably
satisfactory to the Administrative Agent.



“Outstanding Competitive Bid Amount” means, as of any date, the aggregate of all
Competitive Bid Loans, if any, outstanding on such date.



“Outstanding Facility Amount” means, as of any date, the sum of the Outstanding Line
Amount and the Outstanding Competitive Bid Amount, if any.



“Outstanding Line Amount” means, as of any date, the aggregate of all Line Loans,
Swing Loans and Letter of Credit Exposure, outstanding on such date.



“Overall Leverage Ratio” means, as of any day, (a) Consolidated Outstanding
Indebtedness as of such date, divided by (b) Gross Asset Value as of such date, expressed as a
percentage.




“Parent” means BioMed Realty Trust, Inc., a Maryland corporation.



“Party” means any Person other than the Administrative Agent and the Lenders, which
now or hereafter is a party to any of the Loan Documents.



“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereof
established under ERISA.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA and
with respect to the Consolidated Group is maintained by a member of the Consolidated Group or to
which a member of the Consolidated Group contributes or has an obligation to contribute.


 


- 19 -









 





“Percentage” means, with respect to each Lender as of any date, the percentage derived
by dividing that Lender’s then-current Commitment by the then-current Aggregate Commitment
or, if the Aggregate Commitment has been terminated, the percentage derived by dividing that
Lender’s then-current share of the then-current Outstanding Facility Amount by the then-current
Outstanding Facility Amount, in each case disregarding and excluding any portion of the Aggregate
Commitment or the Outstanding Facility Amount held by a Defaulting Lender.



“Permitted Business Activities” means the acquisition, development, renovation,
ownership, leasing, sale, operation and management of buildings primarily used or intended to be
used for office, office/laboratory, research or manufacturing purposes and additional Investments
of the type expressly permitted under Section 6.13.




“Permitted Liens” is defined in Section 6.14.



“Person” means any individual or entity, including a trustee, corporation,
limited liability company, general partnership, limited partnership, joint stock company, trust,
estate, unincorporated organization, business association, firm, joint venture, Governmental
Agency, or other entity.



“Preferred Distributions” means, as of any date with respect to any Person, the
Distributions due and payable to the holders of Preferred Equity in such Person for the most recent
Fiscal Quarter for which financial results have been reported.



“Preferred Equity” means, with respect to any Person, any form of preferred stock
(whether perpetual, convertible or otherwise) or other ownership or beneficial interest in such
Person that entitles the holders thereof to preferential payment or distribution priority with
respect to dividends, assets or other payments over the holders of any other stock or other
ownership or beneficial interest in such Person.



“Prime Rate” means a rate per annum equal to the prime rate of interest publicly
announced from time to time by KeyBank or its parent as its prime rate (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate changes. In the
event that there is a successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate, then the term “Prime Rate” as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative
Agent.



“Prior Agreement” means that certain Second Amended and Restated Unsecured Credit
Agreement dated as of August 1, 2007 as amended by a First Amendment thereto dated as of November
23, 2009 and a Second Amendment thereto dated as of December 4, 2009 by and among Borrower, the
Administrative Agent and certain other lenders.



“Project” means any parcel of real property located in the 48 states that comprise the
continental United States of America or in the District of Columbia which is owned, leased or
operated (in each case in whole or in part) by Borrower, or any of its Subsidiaries or Investment
Affiliates and which is improved with a building or buildings primarily used or intended to be used
for office, office/laboratory, research, warehouse or manufacturing purposes or other ancillary
purposes such as a parking garage serving or in the vicinity of any such building.



“Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.


 


- 20 -









 





“Redevelopment Project” means any Project with fifty percent (50%) or more of its Net
Rentable Area vacant and under renovation, reconstruction or other redevelopment.



“Regulation D” means Regulation D, as at any time amended, of the Board of Governors
of the Federal Reserve System, or any other regulation in substance substituted therefor.



“Regulations T, U and X” means Regulations T, U and X, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulations in substance substituted
therefor.



“Request for Loan” means a written request for a Loan substantially in the form of
Exhibit E, signed by a Senior Officer of Borrower, and properly completed to provide all
information required to be included therein.



“Requirement of Law” means, as to any Person, the articles or certificate of
incorporation and by-laws or other organizational or governing documents of such Person, and any
Law, or judgment, award, decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to which such Person or any of
its Property is subject.



“Requisite Lenders” means (a) as of any date of determination if the Aggregate
Commitment is then in effect, Lenders having in the aggregate more than 50% of the Aggregate
Commitment then in effect and (b) as of any date of determination if the Aggregate Commitment has
then been suspended or terminated, Lenders holding Advances and participation interests in Letters
of Credit and Swing Loans evidencing in the aggregate more than 50% of the aggregate Outstanding
Facility Amount, in each case disregarding and excluding any portion of the Aggregate Commitment or
the Outstanding Facility Amount held by a Defaulting Lender.




“Replacement Lender” is defined in Section 11.8(f).



“Reserve Percentage” means for any day with respect to a LIBOR Rate Loan, the maximum
rate (expressed as a decimal) at which any lender subject thereto would be required to maintain
reserves (including, without limitation, all base, supplemental, marginal and other reserves) under
Regulation D against “Eurocurrency Liabilities” (as that term is used in Regulation D), if such
liabilities were outstanding. The Reserve Percentage shall be adjusted automatically on and as of
the effective date of any change in the Reserve Percentage.



“Responsible Official” means (a) when used with reference to a Person other than an
individual, any corporate officer of such Person, general partner or managing member of such
Person, corporate officer of a corporate general partner or managing member of such Person, or
corporate officer of a corporate general partner of a partnership that is a general partner of such
Person or corporate managing member of a limited liability company that is a managing member of
such Person, or any other responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. The Administrative Agent and
the Lenders shall be entitled to conclusively rely upon any document or certificate that is signed
or executed by a Responsible Official of Parent or any of its Subsidiaries as having been
authorized by all necessary corporate, partnership and/or other action on the part of Parent or
such Subsidiary.


 


- 21 -









 






“S&P” means Standard & Poor’s Rating Group or its successors.



“Secured Indebtedness” means any Indebtedness of a Person that is secured by (i) a
Lien on a Project or (ii) a pledge of any ownership interests in any other Person or on any other
assets, provided that the portion of such Indebtedness included in “Secured Indebtedness” shall not
exceed the aggregate value of the assets securing such Indebtedness at the time such Indebtedness
was incurred.



“Senior Officer” means (a) the chief executive officer, (b) the president, (c) the
chief operating officer, (d) the chief financial officer, (e) the chief accounting officer, (f) any
senior vice president or (g) the vice president of finance, of any of the members of the
Consolidated Group or of any of their corporate general partners or managing members, as
applicable.



“Special LIBOR Circumstance” means the application or adoption after the Closing Date
of any Law or interpretation, or any change therein or thereof, or any change in the interpretation
or administration thereof by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any Lender or its LIBOR Lending
Office with any request or directive (whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority. Notwithstanding anything herein to the
contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines and directives promulgated thereunder and (ii) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case under this clause (ii) pursuant to Basel III, shall be deemed to be a
“change” under this definition regardless of the date enacted or adopted.



“Stabilization” means, as of any date with respect to any Project, that either (i) the
entire Project, or in the case of a Redevelopment Project, the redeveloped portion thereof, was
substantially completed one (1) year or more prior to such date or (ii) the entire Project has, as
of such date, tenants leasing under leases for which the term commencement date has occurred of
eighty-five percent (85%) or more of the total Net Rentable Area thereof, each of which is either
paying rent or is obligated to begin paying rent not later than ninety (90) days after the
commencement date of such tenant’s lease.



“Subsidiary” means, as of any date of determination and with respect to any Person,
(a) any corporation, limited liability company, partnership or other Person (whether or not, in any
case, characterized as such or as a joint venture), whether now existing or hereafter organized or
acquired: (i) in the case of a corporation, of which a majority of the securities having ordinary
voting power for the election of directors or other governing body (other than securities having
such power only by reason of the happening of a contingency) are at the time beneficially owned by
such Person and/or one or more Subsidiaries of such Person, or (ii) in the case of a partnership or
limited liability company, of which a majority of the partnership, membership or other ownership
interests are at the time beneficially owned by such Person and/or one or more of its Subsidiaries;
and (b) any other Person the accounts of which are consolidated with the accounts of the designated
parent.


 


- 22 -









 





“Swap Agreement” means a written agreement between Borrower and one or more financial
institutions, including without limitation, KeyBank, providing for “swap”, “cap”, “collar” or other
interest rate protection with respect to any Indebtedness.



“Swing Loan Commitment” means $75,000,000 of the then-effective Aggregate Commitment,
subject to possible reduction as provided for in Section 2.7 in the case of any reductions
in the Aggregate Commitment made by Borrower.



“Swing Loan Lender” means KeyBank, in its capacity as the Swing Loan Lender under this
Agreement.




“Swing Loan Note” means the note described in Section 2.5.



“Swing Loans” means those Loans described in Section 2.5 that are made or to
be made by the Swing Loan Lender and evidenced by the Swing Loan Note.



“to the best knowledge of” means, when modifying a representation, warranty or other
statement of any Person, that the fact or situation described therein is known by the Person (or,
in the case of a Person other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a reasonable Person
in similar circumstances would have done) would have been known by the Person (or, in the case of a
Person other than a natural Person, would have been known by a Responsible Official of that
Person).



“Total Unencumbered Asset Value” means, as of any day, an amount equal to the sum of
the following amounts for assets then owned or leased under a Mortgageable Ground Lease by a member
of the Consolidated Group or an Investment Affiliate and valued as follows: (i) Adjusted NOI
attributable to Unencumbered Projects that are wholly owned in fee simple (or wholly leased under a
Mortgageable Ground Lease) by Borrower or a Wholly-Owned Subsidiary of Borrower divided by
the Capitalization Rate (excluding, however, for purposes of this clause (i) and the following
clauses (ii) and (iii) any such portion of such Adjusted NOI attributable to (a) Unencumbered
Projects that were Unstabilized Projects at any time during the Fiscal Quarter with respect to
which Adjusted NOI is determined, (b) Unencumbered Projects acquired after the first day of such
Fiscal Quarter, or (c) Unencumbered Projects disposed of during or after such Fiscal Quarter);
plus, without duplication (ii) the BioMed Pro Rata Share of Adjusted NOI attributable to
Unencumbered Projects that are wholly owned in fee simple (or wholly leased under a Mortgageable
Ground Lease, or a combination of owned in fee simple and leased under a Mortgageable Ground Lease)
by a member of the Consolidated Group other than Borrower or a Wholly-Owned Subsidiary of Borrower,
divided by the Capitalization Rate; plus (iii) the Consolidated Group Pro Rata
Share of Adjusted NOI attributable to Unencumbered Projects that are wholly owned in fee simple
(or wholly leased under a Mortgageable Ground Lease) by an Investment Affiliate, divided by
the Capitalization Rate, provided that in the case of clauses (ii) and (iii), if the aggregate
amount to be contributed to Total Unencumbered Asset Value on account of the Unencumbered Projects
described therein would exceed ten percent (10%) of Total Unencumbered Asset Value, the excess of
such aggregate contribution over such maximum percentage shall be excluded; plus (iv) with
respect to Unencumbered Projects excluded from clauses (i), (ii) and (iii) because they are



 


- 23 -









 






Unstabilized
Projects, the greater of (a) the portion of such Adjusted NOI attributable to such Unstabilized Projects (or the BioMed Pro
Rata Share or Consolidated Group Pro Rata Share, as the case may be, thereof with respect to any
such Unstabilized Project owned by a member of the Consolidated Group other than Borrower or a
Wholly-Owned Subsidiary of Borrower or owned by an Investment Affiliate), divided by the
Capitalization Rate; and (b) the Consolidated Group’s GAAP cost basis (or the BioMed Pro Rata Share
or Consolidated Group Pro Rata Share, as the case may be, thereof with respect to any such
Unstabilized Project owned by a member of the Consolidated Group other than Borrower or a
Wholly-Owned Subsidiary of Borrower or owned by Investment Affiliate) in such Unstabilized Project,
provided that, in the case of clause (iv), if the amount to be contributed to Total Unencumbered
Asset Value on account of the Unencumbered Projects described in such clause would exceed ten
percent (10%) of Total Unencumbered Asset Value, the excess of such contribution over such maximum
percentage shall be excluded; plus (v) the Consolidated Group’s GAAP cost basis (or the
BioMed Pro Rata Share or Consolidated Group Pro Rata Share, as the case may be, thereof with
respect to any such unencumbered land parcel owned by a member of the Consolidated Group other than
Borrower or a Wholly-Owned Subsidiary of Borrower or by an Investment Affiliate) of all
unencumbered land parcels, provided that, in the case of clause (v), if the amount to be
contributed to Total Unencumbered Asset Value on account of the unencumbered land parcels described
in such clause would exceed five percent (5%) of Total Unencumbered Asset Value, the excess of such
contribution over such maximum percentage shall be excluded; plus (vi) the acquisition
cost of all Unencumbered Projects acquired after the first day of the most recent Fiscal Quarter
for which Adjusted NOI has been reported and on or prior to such date of determination (or the
BioMed Pro Rata Share or Consolidated Group Pro Rata Share, as the case may be, of such acquisition
cost with respect to any Unencumbered Project acquired by a member of the Consolidated Group other
than Borrower or a Wholly-Owned Subsidiary of Borrower or by an Investment Affiliate), provided
that with respect to each of the foregoing clauses of this sentence, if the amount to be
contributed to Total Unencumbered Asset Value on account of any single Unencumbered Project would
exceed twenty percent (20%) of Total Unencumbered Asset Value, the excess of such contribution over
such maximum percentage shall be excluded. For purposes of determining Total Unencumbered Asset
Value, Unencumbered Projects with negative Adjusted NOI, shall be excluded from clauses (i), (ii)
or (iii) above.



“Total Unsecured Indebtedness” means, as of any date, (A) Consolidated Outstanding
Indebtedness (including without limitation all Indebtedness under this Agreement) less (B) all
Secured Indebtedness of the Consolidated Group less (C) the Consolidated Group Pro Rata Share of
all Secured Indebtedness of Investment Affiliates, provided that any Secured Indebtedness which
both (i) is secured solely by a pledge of stock, partnership interests, membership interests or
other ownership interests in a Person owning a Project or Projects and (ii) is a recourse
obligation of Borrower or Parent shall be included in “Total Unsecured Indebtedness”
notwithstanding clauses (B) and (C) of this sentence.



“type”, when used with respect to any Loan or Advance, means the designation of
whether such Loan or Advance (i) is an Absolute Rate Loan or Advance or a Base Rate Loan or Advance
or a LIBOR Rate Loan or Advance and (ii) is a Competitive Bid Loan or Advance or a Line Loan or
Advance.


 


- 24 -









 





“Unencumbered” means, with respect to any property, that such property (a) is owned in
fee simple or under a Mortgageable Ground Lease by Borrower, another member of the
Consolidated Group or an Investment Affiliate, (b) is not subject to any Lien other than those
Permitted Liens described in Subsections 6.14(a)-(e), (c) is not subject to any Negative
Pledge, (d) is free of all material environmental and structural issues, (e) is not held by a
Person any of whose direct or indirect equity interests are subject to a Permitted Lien described
in Section 6.14(f) or a Negative Pledge unless a pari passu Lien has also been granted
securing the Borrower’s Obligations under this Agreement, and (f) if such property is owned,
directly or indirectly, by a member of the Consolidated Group other than Borrower or Guarantor or
by an Investment Affiliate, such owner has not guaranteed any Indebtedness, unless such owner has
also guaranteed the Obligations under this Agreement.



“Unencumbered Owner” means, as of any date, any owner of one or more of the
then-current Unencumbered Projects.




“Unencumbered Projects” means Projects that are Unencumbered.



“Unsecured Debt Service Amount” means, for the most recent Fiscal Quarter for which
financial results have been reported, an annualized amount determined by multiplying four (4) times
the actual Interest Expense for the Total Unsecured Indebtedness.



“Unsecured Debt Service Coverage Ratio” means, as of any date, (a) an amount equal to
Adjusted Unencumbered NOI divided by (b) the Unsecured Debt Service Amount.



“Unsecured Leverage Ratio” means, as of any day, (a) Total Unsecured Indebtedness as
of such date, divided by (b) Total Unencumbered Asset Value as of such date expressed as a
percentage.



“Unstabilized Project” means, as of any date, either (i) a Redevelopment Project or
(ii) a Project that is currently under construction or has been recently completed (as to its
initial construction), but which in either case (i) or (ii) above, has not yet reached
Stabilization. Once a Project has reached Stabilization, whether by passage of time or leasing, it
shall not thereafter qualify as an Unstabilized Project unless it subsequently becomes a
Redevelopment Project.



“Wholly-Owned Subsidiary” means, with respect to any Person, a Subsidiary of such
Person, 100% of the capital stock or other equity interest of which is owned, directly or
indirectly, by such Person.



1.2. Use of Defined Terms. Any defined term used in the plural shall refer to all
members of the relevant class, and any defined term used in the singular shall refer to any one or
more of the members of the relevant class.



1.3. Accounting Terms. All accounting terms not specifically defined in this
Agreement shall be construed in conformity with, and all financial data required to be submitted by
this Agreement shall be prepared in conformity with, Generally Accepted Accounting Principles
applied on a consistent basis, except as otherwise specifically prescribed herein. In the event
that Generally Accepted Accounting Principles change during the term of this Agreement such that
any covenant contained herein, would then be calculated in a different manner or with different
components with the result being materially adverse to Borrower, (a) Borrower and the Lenders agree
to amend this Agreement in such respects as are necessary to conform those covenants as criteria
for evaluating


 


- 25 -









 






Borrower’s
financial condition to substantially the same criteria as were effective prior to such change in Generally Accepted Accounting
Principles and (b) Borrower shall be deemed to be in compliance with the covenants contained in the
aforesaid Sections if and to the extent that Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect immediately prior to such change, but shall
have the obligation to deliver each of the materials described in Article 7 to the
Administrative Agent and the Lenders, on the dates therein specified, with financial data presented
in a manner which conforms with Generally Accepted Accounting Principles as in effect immediately
prior to such change.



1.4. Exhibits and Schedules. All Exhibits and Schedules to this Agreement, either as
originally existing or as the same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed on any Schedule shall be deemed
disclosed on all Schedules.



1.5. Miscellaneous Terms. The term “or” is disjunctive; the term “and” is
conjunctive. The term “shall” is mandatory; the term “may” is permissive. Masculine terms also
apply to females; feminine terms also apply to males. The term “including” is by way of example
and not limitation.



ARTICLE 2




LOANS





2.1. Loans Generally.



(a) Subject to the terms and conditions set forth in this Agreement, at any time and from time
to time from the Closing Date through the last Banking Day immediately preceding the Maturity Date,
each Lender shall make, on a pro rata basis according to that Lender’s Percentage of the
then-current Aggregate Commitment, its share of a Loan to Borrower in such amounts as Borrower may
request that do not result in the Outstanding Facility Amount (after giving effect to all amounts
requested thereunder) exceeding the Aggregate Commitment and provided that in all events no Default
or Event of Default shall have occurred and be continuing and all conditions to Advances hereunder
shall have been satisfied. Subject to the limitations set forth herein, Borrower may borrow, repay
and reborrow under the Facility without premium or penalty.



(b) The obligation of each Lender to make Advances (including Swing Loan Advances) in
accordance with its respective Commitments is several, and not joint and several; and no Lender
shall be obligated to advance more than its respective Commitment, notwithstanding the default of
any other Lender.



(c) Each Loan shall be made pursuant to a Request for Loan which shall specify the requested
(i) date of such Loan (which must be a Banking Day), (ii) type of Loan, (iii) amount of such Loan,
and (iv) in the case of a LIBOR Rate Loan or Competitive Bid Loan, the Interest Period for such
Loan.


 


- 26 -









 





(d) Promptly following receipt of a Request for Loan, the Administrative Agent shall (by the
end of business on the same day that the request was received) notify each Lender of the date and
type of the Loan, the LIBOR Period or Absolute Interest Period, if
applicable, and that Lender’s Percentage of the Loan, if any. Not later than 1:00 p.m.,
Cleveland time, on the date specified for any Loan (which must be a Banking Day), each Lender shall
make its Percentage of the Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent’s Office. Upon satisfaction or waiver of the applicable
conditions set forth in Article 8, all Advances shall be credited on that date in
immediately available funds to the Designated Deposit Account.



(e) Unless the Requisite Lenders otherwise consent, each Loan shall be not less than
$1,000,000 and all Loans shall be in an integral multiple of $100,000.



(f) The Advances made by each Lender under its Commitment shall be evidenced by that Lender’s
Notes.



(g) A Request for Loan shall be irrevocable upon the Administrative Agent’s first notification
thereof.



(h) If no Request for Loan has been made within the requisite notice periods set forth in
Section 2.2 or 2.3 prior to the end of the LIBOR Period for any LIBOR Rate Loan,
then on the last day of such LIBOR Period, such LIBOR Rate Loan shall be automatically converted
into a Base Rate Loan in the same amount.



2.2. Base Rate Loans. Each request by Borrower for a Base Rate Loan shall be made
pursuant to a Request for Loan received by the Administrative Agent, at the Administrative Agent’s
Office, not later than 1:00 p.m., Cleveland time, on the Banking Day immediately prior to the date
of the requested Base Rate Loan. All Loans shall constitute Base Rate Loans unless properly
designated as a LIBOR Rate Loan pursuant to Section 2.3 or a Competitive Bid Loan pursuant
to Section 2.4.




2.3. LIBOR Rate Loans.



(a) Each request by Borrower for a LIBOR Rate Loan shall be made pursuant to a Request for
Loan received by the Administrative Agent, at the Administrative Agent’s Office, not later than
1:00 p.m., Cleveland time, at least three (3) Banking Days before the first day of the applicable
LIBOR Period.



(b) On the date which is two (2) Banking Days before the first day of the applicable LIBOR
Period, the Administrative Agent shall confirm its determination of the applicable LIBOR Rate
(which determination shall be conclusive in the absence of manifest error) and promptly shall give
notice of the same to Borrower and the Lenders.



(c) Unless the Administrative Agent and the Requisite Lenders otherwise consent, there shall
be no more than ten (10) different LIBOR Periods in effect at any one time.



(d) No LIBOR Rate Loan may be requested or continued during the continuation of a Default or
Event of Default.



(e) Nothing contained herein shall require any Lender to fund any LIBOR Rate Advance in the
London interbank market.


 


- 27 -









 






2.4. Competitive Bid Loans.



(a) Competitive Bid Option. In addition to ratable Advances pursuant to Section
2.1(a), but subject to the terms and conditions of this Agreement (including, without
limitation the limitation set forth in Section 2.1(a) as to the maximum amount of all Loans
not exceeding the Aggregate Commitment), the Borrower may, as set forth in this Section
2.4, request the Lenders, prior to the Maturity Date, to make offers to make Competitive Bid
Loans to the Borrower. Each Lender may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.4. Competitive Bid Loans shall be evidenced by the Competitive Bid Notes.



(b) Competitive Bid Quote Request. When the Borrower wishes to request offers to make
Competitive Bid Loans under this Section 2.4, it shall transmit to the Administrative Agent
by telecopy or electronic mail a Competitive Bid Quote Request substantially in the form of
Exhibit C-1 hereto so as to be received no later than (i) 11:00 a.m. (Cleveland time) at
least five Banking Days prior to the Borrowing Date proposed therein, in the case of a request for
a Competitive LIBOR Margin or (ii) 10:00 a.m. (Cleveland time) at least one Banking Day prior to
the Borrowing Date proposed therein, in the case of a request for an Absolute Rate specifying:




(i) the proposed Borrowing Date for the proposed Competitive Bid Loan,



(ii) the requested aggregate principal amount of such Competitive Bid Loan which must be at
least $25,000,000 and an integral multiple of $1,000,000,



(iii) whether the Competitive Bid Quotes requested are to set forth a Competitive LIBOR Margin
or an Absolute Rate, or both,



(iv) the LIBOR Interest Period, if a Competitive LIBOR Margin is requested, or the Absolute
Interest Period, if an Absolute Rate is requested, and



(v) whether or not such Competitive Bid Loan may be prepaid at the Borrower’s option prior to
the end of the Interest Period applicable thereto and, if so, whether partial prepayments will be
permitted and whether any minimum amount or increments in excess of such minimum will apply to such
prepayments.



The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period in
a single Competitive Bid Quote Request, but in no event shall there be more than ten (10) different
Interest Periods for Competitive Bid Loans in existence at any time. Not more than two (2)
Competitive Bid Quote Requests shall be given within any period of 30 days. A Competitive Bid
Quote Request that does not conform substantially to the form of Exhibit C-1 hereto shall
be rejected, and the Administrative Agent shall promptly notify the Borrower of such rejection by
telecopy or electronic mail.



(c) Invitation for Competitive Bid Quotes. Promptly and in any event before the close
of business on the same Banking Day of receipt of a Competitive Bid Quote Request that is not
rejected pursuant to Section 2.4(b), the Administrative Agent shall send to each of the
Lenders by telecopy or electronic mail an Invitation for Competitive Bid Quotes substantially in
the form of Exhibit C-2 hereto, which shall constitute an invitation by the Borrower
to each Lender to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to which
such Competitive Bid Quote Request relates in accordance with this Section 2.4.


 


- 28 -









 






(d) Submission and Contents of Competitive Bid Quotes.



(i) Each Lender may, in its sole discretion, submit a Competitive Bid Quote containing an
offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid
Quotes (each such offer, an “Offer”). Each Competitive Bid Quote must comply with the requirements
of this Section 2.4(d) and must be submitted to the Administrative Agent by telex or
telecopy or electronic mail at its offices not later than (a) 10:00 a.m. (Cleveland time) at least
three Banking Days prior to the proposed Borrowing Date, in the case of a request for a Competitive
LIBOR Margin or (b) 10:00 a.m. (Cleveland time) on the proposed Borrowing Date, in the case of a
request for an Absolute Rate (or, in either case upon reasonable prior notice to the Lenders, such
other time and rate as the Borrower and the Administrative Agent may agree); provided that
Competitive Bid Quotes submitted by the Administrative Agent may only be submitted if the
Administrative Agent notifies the Borrower of the terms of the Offer or Offers contained therein no
later than 60 minutes prior to the latest time at which the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to the Borrower’s compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.



(ii) Each Competitive Bid Quote shall be in substantially the form of Exhibit C-3
hereto and shall in any case specify:



(1) the proposed Borrowing Date, which shall be the same as that set forth in the applicable
Invitation for Competitive Bid Quotes,



(2) the principal amount of the Competitive Bid Loan for which each such offer is being made,
which principal amount (x) may be greater than, less than or equal to the Commitment of the quoting
Lender, (y) must be at least $5,000,000 and an integral multiple of $1,000,000, and (z) may not
exceed the principal amount of Competitive Bid Loans for which offers are requested,



(3) as applicable, the Competitive LIBOR Margin and Absolute Rate offered for each such
Competitive Bid Loan,



(4) the minimum amount, if any, of the Competitive Bid Loan which may be accepted by the
Borrower, and



(5) the identity of the quoting Lender, provided that such Competitive Bid Loan may be funded
by such Lender’s Designated Lender as provided in Section 2.4(i), regardless of whether
that is specified in the Competitive Bid Quote.


 


- 29 -









 





(iii) The Administrative Agent shall reject any Competitive Bid Quote that:



(1) is not substantially in the form of Exhibit C-3 hereto or does not specify all of the
information required by Section 2.4(d)(ii),



(2) contains qualifying, conditional or similar language, other than any such language
contained in Exhibit C-3 hereto,



(3) proposes terms other than or in addition to those set forth in the applicable Invitation
for Competitive Bid Quotes, or




(4) arrives after the time set forth in Section 2.4(d)(i).



If any Competitive Bid Quote shall be rejected pursuant to this Section 2.4(d)(iii), then
the Administrative Agent shall notify the relevant Lender of such rejection as soon as practical.



(e) Notice to Borrower. The Administrative Agent shall promptly notify the Borrower
of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in accordance with
Section 2.4(d) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the
same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded
by the Administrative Agent unless such subsequent Competitive Bid Quote specifically states that
it is submitted solely to correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent’s notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and Competitive LIBOR
Margins or Absolute Rates, as the case may be, so offered.



(f) Acceptance and Notice by Borrower. Not later than (i) 11:00 a.m. (Cleveland time)
at least three Banking Days prior to the proposed Borrowing Date in the case of a request for a
Competitive LIBOR Margin or (ii) 11:00 a.m. (Cleveland time) on the proposed Borrowing Date, in the
case of a request for an Absolute Rate (or, in either case upon reasonable prior notice to the
Lenders, such other time and date as the Borrower and the Administrative Agent may agree), the
Borrower shall notify the Administrative Agent of its acceptance or rejection of the offers of
which it has been notified pursuant to Section 2.4(e); provided, however, that the failure
by the Borrower to give such notice to the Administrative Agent shall be deemed to be a rejection
of all such offers. In the case of acceptance, such notice (a “Competitive Bid Borrowing Notice”)
shall specify the aggregate principal amount of offers for each Interest Period that are accepted.
The Borrower may accept any Competitive Bid Quote in whole or in part (subject to the terms of
Section 2.4(d)(iii)); provided that:



(i) the aggregate principal amount of all Competitive Bid Loans to be disbursed on a given
Borrowing Date may not exceed the applicable amount set forth in the related Competitive Bid Quote
Request,



(ii) acceptance of offers may only be made on the basis of ascending Competitive LIBOR Margins
or Absolute Rates, as the case may be, and



(iii) the Borrower may not accept any offer that is described in Section 2.4(d)(iii)
or that otherwise fails to comply with the requirements of this Agreement.


 


- 30 -









 





(g) Allocation by Administrative Agent. If offers are made by two or more Lenders
with the same Competitive LIBOR Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as nearly as possible
(in such multiples, not greater than $1,000,000, as the Administrative Agent may deem appropriate)
in proportion to the aggregate principal amount of such offers provided, however, that no Lender
shall be allocated any Competitive Bid Loan which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the Administrative Agent of the amounts
of Competitive Bid Loans shall be conclusive in the absence of manifest error. The Administrative
Agent shall promptly, but in any event on the same Banking Day, notify each Lender of its receipt
of a Competitive Bid Borrowing Notice and the principal amounts of the Competitive Bid Loans
allocated to each participating Lender.



(h) Other Terms. Any Competitive Bid Loan shall not reduce the Commitment of the
Lender making such Competitive Bid Loan, and each such Lender shall continue to be obligated to
fund its full Percentage of all pro rata Advances under the Facility. In no event can the
aggregate amount of all Competitive Bid Loans at any time exceed fifty percent (50%) of the then
current Aggregate Commitment. Unless expressly specified to the contrary in the Competitive Loan
Bid Request, a Competitive Bid Loan shall not be prepaid prior to the end of the applicable
Interest Period. Competitive Bid Loans may not be continued and, if not repaid at the end of the
Interest Period applicable thereto, shall (subject to the conditions set forth in this Agreement)
be replaced by new Competitive Bid Loans made in accordance with this Section 2.4 or by
ratable Advances in accordance with Section 2.1(a).



(i) Designated Lenders. A Lender may designate its Designated Lender to fund a
Competitive Bid Loan on its behalf as described in Section 2.4(d)(ii)(5). Any Designated
Lender which funds a Competitive Bid Loan shall on and after the time of such funding become the
obligee under such Competitive Bid Loan and be entitled to receive payment thereof when due. No
Lender shall be relieved of its obligation to fund a Competitive Bid Loan, and no Designated Lender
shall assume such obligation, prior to the time such Competitive Bid Loan is funded.




2.5. Swing Loan Commitments.



(a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees
to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time
to time between the Closing Date and the date which is thirty (30) Banking Days prior to the
Maturity Date upon notice by Borrower to the Swing Loan Lender given in accordance with this
Section 2.5 such sums as are requested by Borrower that do not result in (i) an aggregate
principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts
requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding
Facility Amount (after giving effect to all Swing Loans requested thereunder) being in excess of
the Aggregate Commitment. Swing Loans shall constitute “Loans” for all purposes hereunder, but
shall not be considered the utilization of a Lender’s Percentage of the Aggregate Commitment. The
funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that
all of the conditions set forth in
Article 8 have been satisfied on the date of such funding (other than advance notice
requirements).


 


- 31 -









 





(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in
substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this
Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the
order of the Swing Loan Lender in such amount as may be outstanding from time to time thereunder
and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender
to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of
receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s
record reflecting the making of such Swing Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record
shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan
Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan
Lender’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under
the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.



(c) Each borrowing of a Swing Loan shall be subject to the limits for Base Rate Loans set
forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan
Lender a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying
the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and
binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date.
Notwithstanding anything herein to the contrary, a Swing Loan shall bear interest at the One Day
LIBOR Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender to
Borrower at the Administrative Agent’s Office (on the same Banking Day that the Request for Loan
was received, if received prior to the deadline stated above on such day) by crediting the account
of Borrower at such office with such proceeds.



(d) The Swing Loan Lender shall within five (5) Banking Days after the date a Swing Loan is
made, request each Lender, including the Swing Loan Lender, to make a Loan pursuant to Section
2.1(a) in an amount equal to such Lender’s Percentage of the amount of the Swing Loan
outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and
directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the
Administrative Agent for the benefit of the Swing Loan Lender pursuant to this Section
2.5(d) shall be considered a Loan pursuant to Section 2.1(a). Unless any of the events
described in Section 9.1(j) shall have occurred (in which event the procedures of
Section 2.5(e) shall apply), each Lender shall make the proceeds of its Loan available to
the Swing Loan Lender for the account of the Swing Loan Lender at the Administrative Agent’s Office
prior to 1:00 p.m. (Cleveland time) in funds immediately available no later than the next Banking
Day after the date such notice is given just as if the Lenders were funding a Base Rate Loan
directly to Borrower, so that thereafter such Obligations shall be evidenced by the Notes. The
proceeds of such Loan shall be immediately applied to repay the Swing Loans.


 


- 32 -









 





(e) If prior to the making of a Loan pursuant to Section 2.5(d) by all of the Lenders,
one of the events described in Section 9.1(j) shall have occurred, each Lender will, on the
date such Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided
participating interest in the Swing Loan in an amount equal to its Percentage of such Swing
Loan. Each Lender will immediately transfer to the Swing Loan Lender in immediately available
funds the amount of its participation and upon receipt thereof the Swing Loan Lender will deliver
to such Lender a Swing Loan participation certificate dated the date of receipt of such funds and
in such amount.



(f) Whenever at any time after the Swing Loan Lender has received from any Lender such
Lender’s participating interest in a Swing Loan, the Swing Loan Lender receives any payment on
account thereof, the Swing Loan Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted in the case of interest payments to reflect the period of time
during which such Lender’s participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Loan Lender is required to be returned,
such Lender will return to the Swing Loan Lender any portion thereof previously distributed by the
Swing Loan Lender to it.



(g) Each Lender’s obligation to fund a Loan as provided in Section 2.5(d) or to
purchase participating interests pursuant to Section 2.5(e) shall be absolute and
unconditional and shall not be affected by any circumstance (except only the failure of the Swing
Loan Lender to make the request described in Section 2.5(d)), including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender or
Borrower may have against the Swing Loan Lender, Borrower or anyone else for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in
the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group;
(iv) any breach of this Agreement or any of the other Loan Documents by any Lender; (v) the failure
to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. No
such funding or purchase by a Lender under the preceding sentence shall be deemed to be a waiver of
any claim that a Lender may otherwise have against the Administrative Agent pursuant to the terms
of this Agreement. The provisions of Section 2.9 shall apply to any Lender which fails or
refuses to make a Loan or fund its participation as provided herein. Each Swing Loan, once so
converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Loan
made by each Lender under its Commitment.




2.6. Letters of Credit.



(a) Subject to the terms and conditions set forth in this Agreement, at any time and from time
to time from the Closing Date through the day that is thirty (30) Banking Days prior to the
Maturity Date, the Administrative Agent (including any successor Administrative Agent that takes
over such position from KeyBank in accordance with the terms hereof) shall issue such Letters of
Credit as Borrower may request upon the delivery of a written request in the form of Exhibit
G hereto (a “Letter of Credit Request”) to the Administrative Agent, provided that (i) upon
issuance of such Letter of Credit, the Letter of Credit Exposure shall not exceed $75,000,000, (ii)
the Outstanding Facility Amount (after giving effect to all Letters of Credit requested thereunder)
shall not exceed the Aggregate Commitment, (iv) the conditions set forth in Article 8 shall
have been satisfied, and (v) in no event shall any amount drawn under a Letter of Credit be
available for reinstatement or a subsequent drawing under such Letter of Credit. Unless the
Administrative Agent and the Requisite Lenders otherwise consent, the term of any Letter of Credit
shall not exceed the lesser of


 


- 33 -









 






twelve
(12) months or a period of time commencing on the issuance of the Letter of Credit and ending on the Banking Day which is
immediately prior to the Maturity Date, provided that any such Letter of Credit may contain an
automatic extension or renewal clause, so long as the final expiration date of such Letter of
Credit shall not be later than the Banking Day immediately preceding the Maturity Date.
Notwithstanding the preceding sentence, the final expiration date of a Letter of Credit may extend
beyond the Maturity Date but not in any event more than twelve (12) months beyond the Maturity Date
if Borrower agrees in writing in the application for such a Letter of Credit to deposit, and
thereafter does deposit, 100% of the face amount of such Letter of Credit into the cash collateral
account described in Section 9.1 below not later than the first to occur of (i) thirty (30)
days prior to the Maturity Date and (ii) the date of any earlier termination of the Aggregate
Commitment hereunder. The amount available to be drawn under any Letter of Credit shall reduce on
a dollar for dollar basis the amount available to be drawn under the Commitments as a Loan.



(b) Each Letter of Credit Request shall be submitted to the Administrative Agent at least
three (3) Banking Days prior to the date upon which the requested Letter of Credit is to be issued.
Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such
Letter of Credit shall be used and (ii) a certification by a Responsible Official of Borrower that
Borrower is and will be in compliance with all covenants under the Loan Documents after giving
effect to the issuance of such Letter of Credit. Borrower shall further deliver to the
Administrative Agent such additional applications and documents as the Administrative Agent may
require, in conformity with the then standard practices of its letter of credit department in
connection with the issuance of such Letter of Credit; provided that in the event of any conflict,
the terms of this Agreement shall control.



(c) The Administrative Agent shall, if it approves of the content of the Letter of Credit
Request (which approval shall not be unreasonably withheld, conditioned or delayed), and subject to
the conditions set forth in this Agreement, issue the Letter of Credit. Each Letter of Credit
shall be in form and substance satisfactory to the Administrative Agent in its reasonable
discretion. Upon issuance of a Letter of Credit, the Administrative Agent shall promptly notify
the Lenders of such issuance and shall provide copies of each Letter of Credit Request and the
corresponding Letter of Credit to any Lender which requests same.



(d) Upon the issuance of a Letter of Credit, and with respect to each Existing Letter of
Credit upon the Agreement Effective Date, each Lender shall be deemed to have purchased a
participation therein from the Administrative Agent in an amount equal to its respective Percentage
of the amount of such Letter of Credit, provided that no Lender shall be obligated to transfer
funds in such amount to the Administrative Agent at such time.



(e) Upon the issuance of each Letter of Credit, Borrower shall pay to the Administrative Agent
(i) for its own account, an issuance fee equal to the greater of (A) $1,500 or (B) one eighth of
one percent (0.125%) per annum to be calculated on the face amount of each Letter of Credit for the
stated duration thereof, based on the actual number of days and using a 360-day year basis, payable
by Borrower on the issuance of each such Letter of Credit and on the date of any increase therein
or extension thereof, plus all reasonable out of pocket costs and the Administrative Agent’s
standard charges of issuing, amending and servicing such Letter of Credit and processing draws
thereunder, and (ii) for the accounts of the Lenders in accordance with their Percentages in such
Letter of


 


- 34 -









 






Credit,
a “Letter of Credit Fee” calculated at the rate of the Applicable Margin per annum in effect from time to time with respect to LIBOR Rate Loans
on the face amount of such Letter of Credit during the period from and including the issuance date
of such Letter of Credit to its expiration or termination date. The Letter of Credit Fee payable
to the Lenders shall be computed on the basis of a year of 360 days and shall be payable quarterly
in arrears as of the first day of each calendar quarter (commencing with the first calendar quarter
following the date of issuance of the Letter of Credit) and on the Maturity Date. Following its
receipt of any such Letter of Credit Fee, Administrative Agent shall promptly pay to each Lender
its pro rata share of such Letter of Credit Fee.



(f) If and to the extent that any amounts are drawn upon any Letter of Credit, the amounts so
drawn shall, from the date of payment thereof by the Administrative Agent to either the date of
reimbursement thereof by Borrower or repayment through a borrowing by Borrower of a Loan, bear
interest at the Base Rate. Upon the receipt by the Administrative Agent of any draw or other
presentation for payment of a Letter of Credit and the payment by the Administrative Agent of any
amount under a Letter of Credit which is not reimbursed by Borrower within twenty four (24) hours
of receipt of notice from the Administrative Agent of such draw, the Administrative Agent shall,
without further notice to or the consent of Borrower, direct the Lenders to fund to the
Administrative Agent in accordance with Section 2.9 on or before 1:00 p.m. (Cleveland time)
on the next Banking Day following Borrower’s failure to reimburse the Administrative Agent, their
respective Percentage of the amount so paid by the Administrative Agent as a Loan. The proceeds of
such funding shall be paid to the Administrative Agent to reimburse the Administrative Agent for
the payment made by it under the Letter of Credit and shall thereafter be evidenced by the Line
Notes. The provisions of Section 2.9 shall apply to any Lender or Lenders failing or
refusing to fund its Percentage of any such draw. The Lenders shall be required to make such Loans
regardless of whether all of the conditions to disbursement set forth in Article 8 have
been satisfied, provided that the making of such Loans shall not be deemed to be a waiver of any
claim that a Lender may otherwise have against the Administrative Agent pursuant to this Agreement.



(g) If, following a draw under any Letter of Credit, but prior to the making of a Loan with
respect thereto under Section 2.6(f) above, one of the events described in Section
9.1(j) shall have occurred, each Lender will promptly pay to the Administrative Agent in
immediately available funds its Percentage of the amount drawn under such Letter of Credit, and
upon receipt thereof the Administrative Agent will deliver to such Lender a Letter of Credit
participation certificate dated the date of receipt of such funds and in such amount funded by such
Lender. The provisions of Section 2.9 shall apply to any Lender which fails or refuses to
fund its participation as provided herein.



(h) Whenever at any time after the Administrative Agent has received from any Lender such
Lender’s payment of funds for its participating interest under a Letter of Credit, the
Administrative Agent receives any payment on account thereof, the Administrative Agent will
distribute to such Lender its participating interest in such amount (appropriately adjusted in the
case of interest payments to reflect the period of time during which such Lender’s participating
interest was outstanding and funded); provided, however, that in the event that such payment (or
portion thereof) received by the Administrative Agent is required to be returned, such Lender will
return to the Administrative Agent any pro rata portion thereof previously distributed by the
Administrative Agent to it.


 


- 35 -









 





(i) Unless otherwise approved by the Administrative Agent, each Letter of Credit shall be in
an amount of not less than $100,000.



(j) The issuance of any supplement, modification, amendment, renewal or extension to or of any
Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of
Credit.



(k) The obligations of Borrower to the Lenders and the Administrative Agent to reimburse
drawings under Letters of Credit under this Agreement shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever and irrespective of any setoff, counterclaim or
defense to payment which Borrower may have or have had against the Administrative Agent or any of
the Lenders (except such as may arise out of the Administrative Agent’s or any Lender’s gross
negligence or willful misconduct), including, without limitation, any setoff, counterclaim or
defense based upon or arising out of the following circumstances: (i) any improper use which may be
made of any Letter of Credit or any improper acts or omissions of any beneficiary or transferee of
any Letter of Credit in connection therewith; (ii) the existence of any claim, set off, defense or
any right which Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or persons or entities for whom any such beneficiary or any such transferee may
be acting) or the Lenders (other than the defense of payment to the Lenders in accordance with the
terms of this Agreement) or any other person, whether in connection with any Letter of Credit, this
Agreement, any other Loan Document, or any unrelated transaction; (iii) any statement or any other
documents presented under any Letter of Credit proving to be insufficient, forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in any respect
whatsoever; (iv) any breach of any agreement between any Borrower and any beneficiary or transferee
of any Letter of Credit; (v) any irregularity in the transaction with respect to which any Letter
of Credit is issued, including any fraud by the beneficiary or any transferee of such Letter of
Credit; and (vi) payment by the Administrative Agent under any Letter of Credit against
presentation of a sight draft or a certificate which does not comply with the terms of such Letter
of Credit, provided that such payment shall not have constituted gross negligence or willful
misconduct on the part of the Administrative Agent.



2.7. Voluntary Reduction of Aggregate Commitment. Borrower shall have the right, at
any time and from time to time, without penalty or charge, upon at least three (3) Banking Days’
prior written notice by a Responsible Official of Borrower to the Administrative Agent, voluntarily
to reduce, permanently and irrevocably, in aggregate principal amounts in an integral multiples of
$1,000,000 but not less than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of the Aggregate Commitment; provided that in no event shall the Aggregate Commitment be
reduced to an amount less than $100,000,000 (unless terminated in its entirety). The
Administrative Agent shall promptly notify the Lenders of any reduction or termination of the
Aggregate Commitment under this Section. Any reduction of the Aggregate Commitment shall be
allocated pro rata among the Lenders in accordance with their respective Percentages of the
Aggregate Commitment. Upon any such reduction of the Aggregate Commitment, the Swing Loan Lender
and the Administrative Agent may each elect, at its option, to reduce the Swing Loan Commitment or
the maximum amount of Letter of Credit Exposure pursuant to Section 2.6(a), as the case may
be, by the same percentage as the percentage reduction in the Aggregate Commitment.


 


- 36 -









 





2.8. Increase in Aggregate Commitment. At any time after the Closing Date of this
Agreement, the Administrative Agent may in its discretion (which discretion shall not be
arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions
set forth below are satisfied), without the consent of the Lenders (except as specified in this
Section 2.8), from time to time at the request of Borrower, increase the Aggregate
Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii)
increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following
conditions:




(i) each Subsequent Lender is an Eligible Assignee;



(ii) Borrower executes (A) a new Line Note and Competitive Bid Note payable to the order of a
Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the
order of an Increasing Lender in the amount of its new, increased Commitment;



(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature
page to this Agreement, and each Increasing Lender executes and delivers to the Administrative
Agent a new signature page to this Agreement reflecting its increased Commitment;



(iv) after giving effect to the admission of any Subsequent Lender or the increase in the
Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,250,000,000;




(v) no Event of Default exists; and



(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which
consent such Lender may withhold in its sole and absolute discretion.



After the admission of any Subsequent Lender or increase in the Commitment of any Increasing
Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of
the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current
Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised
Schedule 1.1).



2.9. Administrative Agent’s Right to Assume Funds Available for Loans. Unless the
Administrative Agent shall have been notified by any Lender no later than 1:00 p.m., Cleveland time
on the Banking Day of the proposed funding by the Administrative Agent of any Loan that such Lender
does not intend to make available to the Administrative Agent such Lender’s portion of the total
amount of such Loan, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of the Loan and the Administrative Agent may, in
reliance upon such assumption, make available to Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower based on such assumption and such
corresponding amount is not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender plus an administrative fee of $200. If such Lender does


 


- 37 -









 






not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent promptly shall notify Borrower and Borrower shall
pay such corresponding amount (but not the administrative fee) to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such Lender or Borrower interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) from such Lender, the daily
Federal Funds Effective Rate or (ii) from Borrower, at the applicable rate for such Loan. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or Borrower may have against any Lender as a
result of any default by such Lender hereunder.



2.10. Extension of Line Facility Maturity Date. Borrower shall have the one time
right and option to extend the Maturity Date to July 13, 2016 (which is the day immediately
preceding the fifth (5th) anniversary of the Agreement Effective Date) upon satisfaction of the
following conditions precedent, which must be satisfied prior to the effectiveness of such
extension of the Maturity Date:



(a) Extension Request. Borrower shall deliver written notice of such request (the
“Extension Request”) to the Administrative Agent not earlier than one hundred fifty (150) days and
not later than the date which is thirty (30) days prior to the initial Maturity Date.



(b) Payment of Extension Fee. The Borrower shall pay to the Administrative Agent, at
the time of the Extension Request, for the benefit of the Lenders, an extension fee equal to
one-quarter of one percent (0.25%) of the then-current Aggregate Commitment. Following its receipt
of the Extension Fee, Administrative Agent shall promptly pay to each Lender its pro rata share of
such Extension Fee.



(c) No Default. On the date the Extension Request is given and on the initial
Maturity Date there shall exist no Default or Event of Default.



(d) Representations and Warranties. On the date of such Extension Request Borrower
shall deliver to the Administrative Agent a Certificate of a Responsible Official signed by a
Senior Officer on behalf of Borrower stating that the representations and warranties contained in
Article 4 (other than (i) representations and warranties which expressly speak as of a
particular date or are no longer true and correct as a result of a change which is not in violation
of this Agreement and (ii) as otherwise disclosed by Borrower and approved in writing by the
Requisite Lenders) will be true and correct in all material respects, both immediately before and
after giving effect to the Extension Request, as though such representations and warranties were
made on and as of that date.



ARTICLE 3




PAYMENTS AND FEES





3.1. Principal and Interest.



(a) Interest shall be payable on the outstanding daily unpaid principal amount of each Advance
from the date thereof until payment in full is made and shall accrue and be payable at the rates
set forth or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law, with interest on overdue interest at the Default Rate in each case to
the fullest extent permitted by applicable Laws. Interest on Competitive Bid Loans and LIBOR Rate
Loans shall be computed on a 360 day year, and actual days elapsed. Interest on Base Rate Loans
shall be computed on a 365 or 366 day year, as applicable, and actual days elapsed.


 


- 38 -









 





(b) Interest accrued on each Base Rate Loan shall be due and payable on each Monthly Payment
Date or at maturity, whether by acceleration or otherwise. Except as otherwise provided in
Section 3.6, the unpaid principal amount of any Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Base Rate. Each change in the interest rate under this
Section 3.1(b) due to a change in the Base Rate shall take effect simultaneously with the
corresponding change in the Base Rate.



(c) Interest accrued on each Competitive Bid Loan and each LIBOR Rate Loan shall be due and
payable on each Monthly Payment Date or at maturity, whether by acceleration or otherwise. Except
as otherwise provided in Section 3.6, the unpaid principal amount of any LIBOR Rate Loan
shall bear interest at a rate per annum equal to the LIBOR Rate for the applicable LIBOR Period and
the unpaid principal amount of any Competitive Bid Loan shall bear interest at a rate per annum
equal to either the Competitive LIBOR Rate or the Absolute Rate, as the case may be, for the
applicable Interest Period.



(d) In the event that any additional interest becomes due and payable for any period with
respect to a Loan, or any additional Facility Fee becomes due and payable for any period, as a
result of the Applicable Margin or Facility Fee Percentage being changed due to any change in the
Guarantor’s Credit Rating, and the interest or Facility Fee for such period has previously been
paid by Borrower, Borrower shall pay to the Administrative Agent for the account of the Lenders the
amount of such increase within ten (10) days of demand.



(e) If not sooner paid, the principal Indebtedness evidenced by the Notes shall be payable on
the Maturity Date, provided that if any Letter of Credit Exposure is then outstanding, Borrower
shall make a deposit to the cash collateral account described in Section 9.2(e) to the
extent of the then-current Letter of Credit Exposure. Nothing herein shall require Borrower to
make any mandatory principal payment on account of the receipt of the proceeds of any Debt Offering
or Equity Offering.



(f) The Notes may, at any time and from time to time, voluntarily be paid or prepaid in whole
or in part without premium or penalty, except that with respect to any voluntary prepayment under
this Section, (i) any partial prepayment shall be not less than $1,000,000, (ii) the Administrative
Agent shall have received written notice of any prepayment by noon, Cleveland time on the date of
prepayment (which must be a Banking Day) in the case of a Base Rate Loan, and, in the case of a
LIBOR Rate Loan or a Competitive Bid Loan, three (3) Banking Days before the date of prepayment,
which notice shall identify the date and amount of the prepayment and the Loan(s) being prepaid,
(iii) any payment or prepayment of all or any part of any LIBOR Rate Loan or a Competitive Bid Loan
on a day other than the last day of the applicable Interest Period shall be subject to Section
3.5(d) and (iv) upon any partial prepayment of a LIBOR Rate Loan that reduces it below
$1,000,000, the remaining portion thereof shall automatically convert to a Base Rate Loan. Unless
otherwise expressly stated to the contrary in the applicable Competitive Bid Quote Request, a
Competitive Bid Loan may not be paid prior to
the last day of the applicable Interest Period, provided, however, that if a Competitive Bid
Loan becomes due prior to its stated maturity due to acceleration of the Obligations, then payment
of such Competitive Bid Loan shall be accompanied by any amount due pursuant to Section
3.5(d). Notwithstanding the foregoing, no prior notice shall be required for the prepayment of
any Swing Loan.


 


- 39 -









 





3.2. Other Fees. In addition to the Letter of Credit issuance fee described above and
the Facility Fees described below, Borrower shall pay to KeyBank, KeyBank Capital Markets and Wells
Fargo Securities, LLC each of the other fees specified in the Fee Letter as and when due in
accordance therewith.



3.3. Facility Fees. Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee (the “Facility Fee”) equal to an aggregate amount computed on
a daily basis by multiplying (i) the Facility Fee Percentage in effect on such day, expressed as a
per diem rate, times (ii) the Aggregate Commitment in effect on such day. The Facility Fee shall
be payable quarterly in arrears on the first Banking Day of each calendar quarter (for the prior
calendar quarter) and upon any termination of the Aggregate Commitment in its entirety. Following
its receipt of any such Facility Fee, Administrative Agent shall promptly pay to each Lender an
aggregate amount equal to the sum of such Lender’s applicable Percentage of the daily amount of
such Facility Fee, based on such Lender’s Commitment on such day. The Facility Fee shall be
computed on a 360 day year, and actual days elapsed.



3.4. Increased Commitment Costs. If any Lender shall determine in good faith that the
introduction after the Closing Date of any applicable Law or guideline regarding capital adequacy,
or any change therein or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or administration thereof, or
compliance by such Lender (or its LIBOR Lending Office) or any corporation controlling such Lender,
with any request, guideline or directive regarding capital adequacy (whether or not having the
force of Law) of any such central bank or other authority not imposed as a result of such Lender’s
or such corporation’s failure to comply with any other Laws, affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation controlling such
Lender and (taking into consideration such Lender’s or such corporation’s policies with respect to
capital adequacy and such Lender’s desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is reduced, as a consequence
of its obligations under this Agreement, then, within ten (10) Banking Days after demand of such
Lender, Borrower shall pay to such Lender, from time to time as specified in good faith by such
Lender, additional amounts sufficient to compensate such Lender in light of such circumstances, to
the extent reasonably allocable to such obligations under this Agreement, provided that Borrower
shall not be obligated to pay any such amount which arose prior to the date which is one hundred
eighty (180) days preceding the date of such demand or is attributable to periods prior to the date
which is one hundred eighty (180) days preceding the date of such demand. Each Lender’s
determination of such amounts shall be conclusive in the absence of manifest error.
Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines and directives promulgated thereunder and (ii)
all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case under this clause (ii) pursuant
to Basel III, shall be deemed to
be a “change” under this Section 3.4 and shall entitle the Lenders to recover the
amounts described in this Section 3.4, regardless of the date enacted or adopted.


 


- 40 -









 






3.5. LIBOR Costs and Related Matters.




(a) If, after the date hereof, the existence or occurrence of any Special LIBOR Circumstance:



(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or
cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans or its
obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any
Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts
due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR
Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income (including taxes on gross income imposed in
lieu of net income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business”
and (ii) any withholding taxes or other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed, for any reason, to provide Borrower
with the appropriate form or forms required by Section 11.21, to the extent such forms are
then required by applicable Laws to establish a complete exemption;



(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable
on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against assets of, deposits with or for
the account of, or credit extended by, any Lender or its LIBOR Lending Office); or



(iii) shall impose on any Lender or its LIBOR Lending Office or the London interbank market
any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans,
its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the
same;



and the result of any of the foregoing, as determined in good faith by such Lender, increases the
cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or
in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans or its
obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by
such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes
evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate Advances, then, within five (5)
Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall
pay to such Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded
100% of its LIBOR Rate Advance in the London interbank market), provided, that with respect to any
additional amount arising as a result of the occurrence of an event described in clause (i) above,
Borrower shall not be obligated to pay any such amount which arose prior to the date which is
ninety (90) days preceding the
date of such demand or is attributable to periods prior to the date which is ninety (90) days
preceding the date of such demand. A statement of any Lender claiming compensation under this
subsection shall be conclusive in the absence of manifest error.


 


- 41 -









 





(b) If, after the date hereof, the existence or occurrence of any Special LIBOR Circumstance
shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or
its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Rate Loan, or
materially restrict the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, or to determine or charge interest rates based upon the
LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation
to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility
and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower.
Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate
Advances, together with accrued interest thereon, automatically shall be converted to Base Rate
Advances on either (1) the last day of the LIBOR Period(s) applicable to such LIBOR Rate Advances
if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s)
or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate
Advances to such day(s), provided that in such event the conversion shall not be subject to payment
of a prepayment fee under Section 3.5(d). Each Lender agrees to endeavor promptly to
notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date,
which will cause that Lender to notify the Administrative Agent under this Section, and agrees to
designate a different LIBOR Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons set forth above (or those set
forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Rate Loan, such
Lender shall fund such amount as a Base Rate Advance for the same period of time, and such amount
shall be treated in all respects as a Base Rate Advance. Any Lender whose obligation to make LIBOR
Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent
and Borrower of the cessation of the Special LIBOR Circumstance which gave rise to such suspension.




(c) If, with respect to any proposed LIBOR Rate Loan:



(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting
the London interbank market generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the London
interbank market for the applicable LIBOR Period; or



(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined
by the Administrative Agent (i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the London interbank market in the relevant amount for the applicable LIBOR
Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the
applicable LIBOR Rate Advances;



then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders,
whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to
such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate
Advances shall be suspended.


 


- 42 -









 





(d) Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders
against any loss or expense that the Lenders may sustain or incur (including, without limitation,
any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Competitive LIBOR Margin Competitive Bid Loans or
LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of
any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert, to the
extent applicable, a Competitive LIBOR Margin Competitive Bid Loan or a LIBOR Rate Loan on a date
specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement
date of any Interest Period hereunder the applicable conditions set forth herein as prerequisites
to an Advance that is to be a LIBOR Rate Loan or a Competitive LIBOR Margin Competitive Bid Loan or
to the election of an Absolute Rate, a Competitive LIBOR Margin or a LIBOR Rate, (iv) any failure
to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or
prepayment permitted or mandated hereunder of a LIBOR Rate Loan or a Competitive Bid Loan on a date
other than the last day of the relevant Interest Period, including without limitation upon
acceleration following an Event of Default, unless otherwise provided in the related Competitive
Bid Quote Request and related Competitive Bid Quote, in the case of a Competitive Bid Loan, or (vi)
the occurrence of any Event of Default, including but not limited to any loss or expense sustained
or incurred or to be sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain a LIBOR Rate Loan or a Competitive Bid Loan. Without limiting the
foregoing, such loss or expense shall conclusively be deemed to include a “Breakage Fee” (as
defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the
financial loss incurred by the Lenders resulting from prepayment or failure to borrow, calculated
by the Administrative Agent as the difference between the amount of interest the Lenders would have
earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of
the applicable Interest Period) had prepayment or failure to borrow not occurred and the interest
the Lenders would actually earn (from like investments in the Money Markets as of the date of
prepayment or failure to borrow) as a result of the redeployment of funds from the prepayment or
failure to borrow. Borrower agrees that the Breakage Fee shall not be discounted to its present
value. Any voluntary prepayment of a LIBOR Rate Loan or a Competitive Bid Loan shall be in an
amount to be agreed upon between Borrower and Administrative Agent, with respect to any LIBOR Rate
Loan, or in such amount as was proposed by Borrower in the applicable Competitive Bid Quote Request
pursuant to Section 2.4(b)(v) and agreed to by the applicable Competitive Bid Lender in its
related Competitive Bid Quote, with respect to any Competitive Bid Loan. The term “Money Markets”
refers to one or more wholesale funding markets available to Lenders, including negotiable
certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and
others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of
the Administrative Agent, explaining any such loss or expense and setting forth the computation of
the Breakage Fee pursuant to the preceding provisions which, in the absence of manifest error,
shall be conclusive and binding on Borrower.


 


- 43 -









 





(e) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation
pursuant to this Section 3.5, and agrees to designate a different LIBOR
Lending Office if such designation will avoid the need for or reduce the amount of such
compensation and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender under this Section
3.5 shall set forth the basis upon which it has been determined that such an amount is due from
Borrower, a calculation of the amount due, and a certification that the corresponding costs have
been incurred by the Lender.



3.6. Late Payments. If any installment of principal or interest or any fee or cost or
other amount payable under any Loan Document to the Administrative Agent or any Lender is not paid
when due, it shall thereafter bear interest at a fluctuating interest rate per annum (the “Default
Rate”) at all times equal to (i) in the case of interest or principal, the sum of the rate
otherwise applicable to the Loans, plus 3% and (ii) in the case of any other amount, the sum of the
Base Rate plus 3%, to the fullest extent permitted by applicable Laws. Accrued and unpaid interest
on past due amounts (including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest extent permitted by
applicable Laws, and shall be payable upon demand. In addition, Borrower shall pay, upon demand, a
late charge equal to five percent (5%) of any amount of interest and/or principal payable on the
Loans or any other amounts payable hereunder or under the other Loan Documents which is not paid
within ten (10) days of the date when due.



3.7. Computation of Interest and Fees. Computation of interest and fees under this
Agreement shall be calculated on the basis of a year of 360 days and the actual number of days
elapsed, except that interest at the Base Rate shall be calculated on the basis of a 365 or 366 day
year, as applicable. Interest shall accrue on each Loan for the day on which the Loan is made;
interest shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid. Any Loan that is repaid on the same day on which it is made shall bear interest
for one day. Notwithstanding anything in this Agreement to the contrary, interest in excess of the
maximum amount permitted by applicable Laws shall not accrue or be payable hereunder or under the
Notes, and any amount paid as interest hereunder or under the Notes which would otherwise be in
excess of such maximum permitted amount shall instead be treated as a payment of principal.



3.8. Non Banking Days. If any payment to be made by Borrower or any other Party under
any Loan Document shall come due on a day other than a Banking Day, payment shall instead be
considered due on the next succeeding Banking Day, unless, in the case of a payment relating to a
LIBOR Rate Loan or a Competitive Bid Loan, such next succeeding Banking Day is in the next calendar
month, in which case such payment shall be made on the next preceding Banking Day, and the
extension of time shall be reflected in computing interest and fees.




3.9. Manner and Treatment of Payments.



(a) Each payment hereunder (except payments pursuant to Sections 3.4, 3.5,
11.3, 11.11 and 11.22) or on the Notes or under any other Loan Document
shall be made to the Administrative Agent at the Administrative Agent’s Office for the account of
each of the Lenders or the Administrative Agent, as the case may be, in immediately available funds
not later than 4:00 p.m., Cleveland time, on the day of payment (which must be a Banking Day). All
payments received after such time, on any Banking Day, shall be deemed received on the next
succeeding Banking Day. The amount of all payments received by the Administrative Agent for
the account of each Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment was received by the
Administrative Agent by 4:00 p.m., Cleveland time, on a Banking Day and not so made available to
the account of a Lender on that Banking Day, the Administrative Agent shall reimburse that Lender
for the cost to such Lender of funding the amount of such payment at the Federal Funds Effective
Rate. All payments shall be made in Dollars.


 


- 44 -









 





(b) Each payment or prepayment made when no Event of Default has occurred and is then
continuing shall be applied first to Swing Loans until paid in full, then to Base Rate Loans until
paid in full, then, at Borrower’s option, either to LIBOR Rate Loans or to Competitive Bid Loans or
any combination thereof until all LIBOR Rate Loans and Competitive Bid Loans are paid in full. Any
payment or prepayment made when an Event of Default has occurred and is then continuing shall be
applied first to Swing Loans until paid in full, then to all other Advances then outstanding on a
pro rata basis in accordance with each Lender’s Funded Percentage of the aggregate amount of
Advances then outstanding. Each payment or prepayment on account of any such Base Rate Loan, LIBOR
Rate Loan or Competitive Bid Loan shall be applied pro rata according to the outstanding Advances
made by each Lender comprising such Loan.



(c) Each Lender shall keep a record (in writing or by an electronic data entry system) of
Advances made by it and payments received by it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be presumptive evidence of the
amounts owing, absent manifest error. Notwithstanding the foregoing sentence, the failure by any
Lender to keep such a record shall not affect Borrower’s obligation to pay the Obligations.



(d) Each payment of any amount payable by Borrower or any other Party under this Agreement or
any other Loan Document shall be made without setoff or counterclaim and free and clear of, and
without reduction by reason of, any taxes, assessments or other charges imposed by any Governmental
Agency, central bank or comparable authority, excluding (i) taxes imposed on or measured in whole
or in part by any Lender’s overall net income (including taxes on gross income imposed in lieu of
net income tax, minimum taxes or branch profits taxes) by (A) any jurisdiction (or political
subdivision thereof) in which such Lender is organized or maintains its principal office or LIBOR
Lending Office or (B) any jurisdiction (or political subdivision thereof) in which such Lender is
“doing business” and (ii) any withholding taxes or other taxes based on gross income imposed by the
United States of America for any period with respect to which any Lender has failed, for whatever
reason, timely to provide Borrower with the appropriate form or forms required by Section
11.21, to the extent such forms are then required by applicable Laws to establish a complete
exemption (all such non excluded taxes, assessments or other charges being hereinafter referred to
as “Taxes”). To the extent that Borrower is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender under this Agreement,
Borrower shall (i) make such deduction or withholding and pay the same to the relevant Governmental
Agency and (ii) pay such additional amount to that Lender as is necessary to result in that
Lender’s receiving a net after Tax amount equal to the amount to which that Lender would have been
entitled under this Agreement absent such deduction or withholding.


 


- 45 -









 





3.10. Funding Sources. Nothing in this Agreement shall be deemed to obligate any
Lender to obtain the funds for any Loan or Advance in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain the funds for any
Loan or Advance in any particular place or manner.



3.11. Failure to Charge Not Subsequent Waiver. Any decision by the Administrative
Agent or any Lender not to require payment of any interest (including interest arising under
Section 3.6), fee, cost or other amount payable under any Loan Document, or to calculate
any amount payable by a particular method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Agent’s or such Lender’s right to require full payment of any interest
(including interest arising under Section 3.6), fee, cost or other amount payable under any
Loan Document, or to calculate an amount payable by another method that is not inconsistent with
this Agreement, on any other or subsequent occasion.



3.12. Administrative Agent’s Right to Assume Payments Will be Made by Borrower.
Unless the Administrative Agent shall have been notified by Borrower prior to the date on which any
payment to be made by Borrower hereunder is due that Borrower does not intend to remit such
payment, the Administrative Agent may, in its discretion, assume that Borrower has remitted such
payment when so due and the Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date an amount equal to such Lender’s
share of such assumed payment. If Borrower has not in fact remitted such payment to the
Administrative Agent, each Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent
at the Federal Funds Effective Rate.



3.13. Calculations Detail. The Administrative Agent, and any Lender, shall provide
reasonable detail to Borrower regarding the manner in which the amount of any payment to the
Administrative Agent and the Lenders, or that Lender, under Article 3 has been determined,
within a reasonable period of time after request by Borrower.



3.14. Survivability. The provisions of Sections 3.4 and 3.5 shall
survive following the date on which the Commitments and all Letters of Credit are terminated and
all Loans and Obligations with respect to any Letter of Credit hereunder are fully paid, and
Borrower shall remain obligated thereunder for all claims under such Sections made by any Lender to
Borrower.



ARTICLE 4




REPRESENTATIONS AND WARRANTIES





Borrower represents and warrants to the Lenders that:



4.1. Existence and Qualification; Power; Compliance With Laws. Parent is a
corporation duly formed, validly existing and in good standing under the Laws of Maryland.
Borrower is a limited partnership, duly formed, validly existing and in good standing under the
Laws of Maryland. Each of Borrower and Guarantor is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the conduct of its business or
the ownership or leasing of its Projects makes such qualification or registration necessary,
except where the failure so to qualify or register and to be in good standing would not constitute
a Material Adverse Effect. Each of Borrower and Guarantor has all requisite power and authority to
conduct its business, to own and lease its Projects and to execute and deliver each Loan Document
to which it is a Party and to perform its Obligations. All


 


- 46 -









 






outstanding
shares of capital stock of Parent are duly authorized, validly issued, fully paid and nonassessable, and no holder thereof has
any enforceable right of rescission under any applicable state or federal securities Laws. To
Borrower’s knowledge, each of the Borrower and Guarantor is in compliance with all Laws and other
legal requirements applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Agency
that are necessary for the transaction of its business, except where the failure so to comply,
obtain authorizations, etc., file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect. Parent is a “real estate investment trust” within the meaning of §856 of
the Code, has elected to be treated as a real estate investment trust and is subject to federal
income taxation as a real estate investment trust pursuant to §§856-860 of the Code.



4.2. Authority; Compliance With Other Agreements and Instruments and Government
Regulations. The execution, delivery and performance by each of Borrower and Guarantor of the
Loan Documents to which it is a Party have been duly authorized by all necessary corporate,
partnership or limited liability company action, as applicable, and do not and will not:



(a) Require any consent or approval not heretofore obtained of any partner, director,
stockholder, security holder or creditor of Borrower and Guarantor;



(b) Violate or conflict with any provision of Borrower’s or Guarantor’s charter, articles of
incorporation, bylaws or other organizational agreements, as applicable;



(c) Result in or require the creation or imposition of any Lien upon or with respect to any
Project now owned or leased or hereafter acquired by Borrower and Guarantor;



(d) Violate in any material respect any material Requirement of Law applicable to Borrower and
Guarantor; or



(e) Result in a breach of or constitute a default under, or cause or permit the acceleration
of any obligation owed under, any indenture or loan or credit agreement or any other Contractual
Obligation to which Borrower and Guarantor is a party or by which Borrower and Guarantor or any of
their Projects are bound or affected;



and neither Borrower nor Guarantor is in violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit agreement described in Section
4.2(e), in any respect that constitutes a Material Adverse Effect.



4.3. No Governmental Approvals Required. Except as previously obtained or made, and
except for consents, approvals or permits pertaining to construction or development of a type that
are routinely granted and that would not normally be obtained before the commencement of
performance and which Borrower has no reason to believe will not be obtained as and when required,
no authorization, consent, approval, order, license or permit from, or filing, registration
or qualification with, any Governmental Agency is or will be required to authorize or permit
under applicable Laws the execution, delivery and performance by each of Borrower and Guarantor of
the Loan Documents to which it is a Party.


 


- 47 -









 





4.4. Subsidiaries. Schedule 4.4 hereto correctly sets forth the names, form
of legal entity, number of shares of capital stock (or other applicable unit of equity interest)
issued and outstanding, and the record owner thereof and jurisdictions of organization of all
Subsidiaries of Parent. Unless otherwise indicated in Schedule 4.4, all of the outstanding
shares of capital stock, or all of the units of equity interest, as the case may be, of each such
Subsidiary are owned of record and beneficially by Parent, there are no outstanding options,
warrants or other rights to purchase capital stock of any such Subsidiary, and all such shares or
equity interests so owned are duly authorized, validly issued, fully paid and nonassessable, and
were issued in compliance with all applicable state and federal securities and other Laws, and are
free and clear of all Liens, except for Permitted Liens.



4.5. Financial Statements. All financial statements and other information previously
delivered to the Administrative Agent by Borrower fairly present in all material respects the
financial condition, results of operations, cash flows and/or other information described therein.



4.6. No Other Liabilities; No Material Adverse Changes. Neither Borrower nor
Guarantor have any material liability or material contingent liability required under Generally
Accepted Accounting Principles to be reflected or disclosed, and not reflected or disclosed, in the
balance sheets described in Section 4.5, other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial statements. As of the
Closing Date, no circumstance or event has occurred that constitutes a Material Adverse Effect.




4.7. [Intentionally Omitted.]



4.8. Intangible Assets. Borrower and Guarantor own, or possess the right to use to
the extent necessary in their respective businesses, all material trademarks, trade names,
copyrights, patents, patent rights, computer software, licenses and other Intangible Assets that
are used in the conduct of their businesses as now operated, and no such Intangible Asset, to the
best knowledge of Borrower, conflicts with the valid trademark, trade name, copyright, patent,
patent right or Intangible Asset of any other Person to the extent that such conflict constitutes a
Material Adverse Effect.




4.9. [Intentionally Omitted.]



4.10. Litigation. Except for (a) any matter that is not $5,000,000 or more in excess
of the amount that is fully covered as to subject matter and amount (subject to applicable
deductibles and retentions) by insurance for which the insurance carrier has not asserted lack of
subject matter coverage or reserved its right to do so, (b) any matter, or series of related
matters, involving a claim against Parent or any of its Subsidiaries of less than $10,000,000 (or,
in each case in which this representation and warranty is remade after the Closing Date, less than
$10,000,000 or such greater amount that the Administrative Agent has reasonably determined, after
full written disclosure thereof by Borrower to the Administrative Agent, would not constitute a
Material Adverse Effect), (c) matters of an administrative nature not involving a claim or charge
against Parent or any of its Subsidiaries and (d) matters set forth in


 


- 48 -









 





Schedule
 4.10, there are no actions, suits, proceedings or investigations pending as to which
Parent or any of its Subsidiaries have been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting Parent or any of its Subsidiaries or any
Project of any of them before any Governmental Agency, mediator or arbitrator. As of the Closing
Date, there are no judgments outstanding against or affecting the Parent or any of its Subsidiaries
or any Project individually or in the aggregate involving amounts in excess of $50,000,000.



4.11. Binding Obligations. Each of the Loan Documents to which Borrower or Guarantor
is a Party will, when executed and delivered by Borrower or Guarantor, as the case may be,
constitute the legal, valid and binding obligation of Borrower or Guarantor, as the case may be,
enforceable against Borrower or Guarantor, as the case may be, in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws or equitable principles relating to the
granting of specific performance and other equitable remedies as a matter of judicial discretion.



4.12. No Default. No event has occurred and is continuing that is a Default or Event
of Default.




4.13. ERISA.




(a) With respect to each Pension Plan:



(i) such Pension Plan complies in all material respects with ERISA and any other applicable
Laws to the extent that noncompliance would constitute a Material Adverse Effect;



(ii) such Pension Plan has not incurred any “accumulated funding deficiency” (as defined in
Section 302 of ERISA) that would constitute a Material Adverse Effect;



(iii) no “reportable event” (as defined in Section 4043 of ERISA, but excluding such events as
to which the PBGC has by regulation waived the requirement therein contained that it be notified
within thirty days of the occurrence of such event) has occurred that would constitute a Material
Adverse Effect; and



(iv) neither Parent nor any of its Subsidiaries has engaged in any nonexempt “prohibited
transaction” (as defined in Section 4975 of the Code) that would constitute a Material Adverse
Effect.



(b) neither Parent nor any of its Subsidiaries has incurred or expects to incur any withdrawal
liability to any Multiemployer Plan that would constitute a Material Adverse Effect.



4.14. Regulations T, U and X; Investment Company Act. No part of the proceeds of any
Loan hereunder will be used to purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any Margin Stock in violation of Regulations T, U and X. Neither Parent
nor any of its Subsidiaries is or is required to be registered as an “investment company” under the
Investment Company Act of 1940, as amended.


 


- 49 -









 





4.15. Disclosure. No written statement made by a Senior Officer to the Administrative
Agent or any Lender in connection with this Agreement, or in connection with any Loan, as of the
date thereof contained any untrue statement of a material fact or omitted a material fact necessary
to make the statement made not misleading in light of all the circumstances existing at the date
the statement was made.



4.16. Tax Liability. Parent and its Subsidiaries have filed all tax returns which are
required to be filed, and have paid, or made provision for the payment of, all taxes with respect
to the periods, Project or transactions covered by said returns, or pursuant to any assessment
received by Parent or any of its Subsidiaries, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which adequate reserves have been
established and maintained, (b) immaterial taxes so long as no material Project of Parent or any of
its Subsidiaries is at impending risk of being seized, levied upon or forfeited and (c) certain tax
returns of the Borrower and Guarantor and their Subsidiaries are on extension.



4.17. Hazardous Materials. Except as described in Schedule 4.17, as of the
Closing Date (a) neither Borrower, nor to the best knowledge of Borrower, Guarantor or other Person
at any time has disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Projects in violation of any Hazardous Materials Law that would
individually or in the aggregate constitute a Material Adverse Effect, (b) to the best knowledge of
Borrower, no condition exists that violates any Hazardous Material Law affecting any Projects
except for such violations that would not individually or in the aggregate constitute a Material
Adverse Effect, (c) no Projects or any portion thereof is or has been utilized by Borrower nor, to
the best knowledge of Borrower, Guarantor or other Person as a site for the manufacture of any
Hazardous Materials, (d) to the extent that any Hazardous Materials are used, generated or stored
by Borrower or Guarantor or other Person on any Project, or transported to or from such Project by
Borrower or Guarantor or other Persons, such use, generation, storage and transportation by
Borrower and, to the best knowledge of Borrower, by Guarantor or other Person are in compliance
with all Hazardous Materials Laws except for such non compliance that would not constitute a
Material Adverse Effect or be materially adverse to the interests of the Lenders, and (e) no
Project is subject to any remediation, removal, containment or similar action conducted by or on
behalf of Borrower or Guarantor or other Person except for such remediation, removal or containment
or similar action that would not constitute a Material Adverse Effect or be materially adverse to
the interest of the Lenders.




4.18. [Intentionally Omitted].



4.19. Projects. All of Borrower’s and Guarantor’s and their respective Subsidiaries’
Projects are in good repair and condition, subject to ordinary wear and tear, other than with
respect to (i) deferred maintenance existing as of the date of acquisition of such Project as
permitted in this Section 4.19, (ii) Projects currently under development, (iii) defects
relating to Projects which would not constitute a Material Adverse Effect and (iv) casualty and
condemnation. Borrower and Guarantor further have completed or caused to be completed an
appropriate investigation of the environmental condition of each such Project as of the later of
(a) the approximate date of Borrower’s or Guarantor’s or any such Subsidiary’s purchase thereof or
(b) the approximate date upon which such Project was last security for Indebtedness of Borrower,
Guarantor or such Subsidiary if such financing was not closed on or about the date of the



 


- 50 -









 






acquisition
of such Project to the extent such an investigation was required by the applicable lender, including preparation of a “Phase I” report and, if appropriate, a “Phase II” report,
in each case prepared by a recognized environmental consultant in accordance with customary
standards which discloses that such Project is not in violation of the representations and
covenants set forth in this Agreement, unless such violation as to Unencumbered Projects has been
disclosed in writing to the Administrative Agent and satisfactory remediation actions are being
taken. There are no pending eminent domain proceedings against any Unencumbered Project, and, to
the best knowledge of Borrower, no such proceedings are presently threatened by any taking
authority which individually or in the aggregate would constitute a Material Adverse Effect. None
of the Project of Borrower or Guarantor or their respective Subsidiaries is now damaged or injured
as a result of any fire, explosion, accident, flood or other casualty in any manner which
individually or in the aggregate would constitute a Material Adverse Effect. The Projects owned by
Parent, Borrower and their respective Subsidiaries as of the date hereof, are set forth on
Schedule 4.19 hereto.



4.20. Brokers. None of Borrower, Guarantor or their respective Subsidiaries has
engaged or otherwise dealt with any broker, finder or similar entity in connection with this
Agreement or the Loans contemplated hereunder.



4.21. Other Debt. None of Borrower or Guarantor or their respective Subsidiaries is
in default (after expiration of all applicable grace and cure periods) in the payment of any other
Indebtedness or under any mortgage, deed of trust, security agreement, financing agreement or
indenture involving Indebtedness of $25,000,000 or more or under any other material agreement or
lease to which any of them is a party.



4.22. Solvency. As of the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all of the Loans made or to
be made hereunder, neither Borrower nor Guarantor (taken on a consolidated basis) is insolvent on a
balance sheet basis such that the sum of such Person’s assets exceeds the sum of such Person’s
liabilities (taken on a consolidated basis), each of Borrower and Guarantor is able to pay its
debts as they become due, and each of Borrower and Guarantor has sufficient capital to carry on its
business.



4.23. No Fraudulent Intent. Neither the execution and delivery of this Agreement or
any of the other Loan Documents nor the performance of any actions required hereunder or thereunder
is being undertaken by Guarantor with or as a result of any actual intent by any of such Persons to
hinder, delay or defraud any entity to which any of such Persons is now or will hereafter become
indebted.



4.24. Transaction in Best Interests of Borrower and Guarantor; Consideration. The
transaction evidenced by this Agreement and the other Loan Documents is in the best interests of
Borrower and Guarantor. The direct and indirect benefits to inure to Borrower and Guarantor
pursuant to this Agreement and the other Loan Documents constitute substantially more than
“reasonably equivalent value” (as such term is used in Section 548 of the Bankruptcy Code) and
“valuable consideration,” “fair value,” and “fair consideration” (as such terms are used in any
applicable state fraudulent conveyance law), in exchange for the benefits to be provided by
Borrower and Guarantor pursuant to this Agreement and the other Loan Documents, and but for the
willingness of Borrower and Guarantor to be jointly and severally liable as co Loan obligor for the
Loan, Borrower and Guarantor would be unable to obtain the financing contemplated
hereunder which financing will enable Borrower and Guarantor and their respective Subsidiaries
to have available financing to conduct and expand their business.


 


- 51 -









 





4.25. No Bankruptcy Filing. None of Borrower and Guarantor or any of their respective
Subsidiaries is contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of its Property, and neither of Borrower and
Guarantor has any knowledge of any Person contemplating the filing of any such petition against it
or any Subsidiary.



4.26. OFAC Representation. Each of the Borrower and the Guarantor is not, and shall
not be at any time, a person with whom the Lenders are restricted from doing business under the
regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of Treasury of the
United States of America (including, those Persons named on OFAC’s Specially Designated and Blocked
Persons list) or under any statute, executive order (including, the September 24, 2001 Executive
Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit,
or Support Terrorism), or other governmental action and is not and shall not engage in any dealings
or transactions or otherwise be associated with such persons. In addition, the Borrower hereby
agrees to provide (and cause the Guarantor to provide) to the Administrative Agent any information
that the Administrative Agent deems necessary from time to time in order to ensure compliance with
all applicable Laws concerning money laundering and similar activities.



ARTICLE 5




AFFIRMATIVE COVENANTS OTHER THAN

INFORMATION AND REPORTING REQUIREMENTS




So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any
other Obligation remains unpaid, or any portion of the Commitments remains in force, Borrower
shall, and shall cause Guarantor and their respective Subsidiaries to, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise consents:



5.1. Payment of Taxes and Other Potential Liens. Pay and discharge promptly all
taxes, assessments and governmental charges or levies imposed upon any of them, upon their
respective Property or any part thereof and upon their respective income or profits or any part
thereof, and all claims for labor, materials or supplies that if unpaid might by Law become a Lien
upon any of their respective Property, except that Borrower and Guarantor and their respective
Subsidiaries shall not be required to pay or cause to be paid (a) any tax, assessment, charge, levy
or claim that is not yet past due, or is being contested in good faith by appropriate proceedings
so long as the relevant entity has established and maintains adequate reserves for the payment of
the same or (b) any immaterial tax or claim so long as no material Property of Borrower and
Guarantor or their Subsidiaries is at immediate risk of being seized, levied upon or forfeited.



5.2. Preservation of Existence. Preserve and maintain their respective existences in
the jurisdiction of their formation and all material authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits, or registrations from any Governmental
Agency that are necessary for the transaction of their respective business and qualify and remain
qualified to transact business in each jurisdiction in which such qualification is necessary in
view
of their respective business or the ownership or leasing of their respective Properties except
(a) as otherwise permitted by this Agreement and (b) where the failure to so qualify or remain
qualified would not constitute a Material Adverse Effect.


 


- 52 -









 





5.3. Maintenance of Projects. Maintain, preserve and protect all of their respective
Income-Producing Projects in good order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of their respective Projects.



5.4. Maintenance of Insurance. Maintain liability, casualty and other insurance
(subject to customary deductibles and retentions) with responsible insurance companies in such
amounts and against such risks as is carried by responsible companies engaged in similar businesses
and owning similar assets in the general areas in which Borrower and Guarantor or such
Subsidiaries, as applicable, operate. Without limiting the foregoing, upon request of the
Administrative Agent, each of Borrower or Guarantor shall maintain for itself, and its
Subsidiaries, or cause each of its Subsidiaries to maintain, terrorism insurance in form, substance
and amount as is reasonably satisfactory to the Administrative Agent.



5.5. Compliance With Laws. Comply with all Requirements of Law noncompliance with
which would constitute a Material Adverse Effect, except that Borrower and Guarantor or such
Subsidiaries need not comply with a Requirement of Law then being contested by any of them in good
faith by appropriate proceedings.




5.6. Permitted Business Activities. Engage only in Permitted Business Activities.



5.7. Keeping of Records and Books of Account. Keep adequate records and books of
account reflecting all financial transactions in conformity with Generally Accepted Accounting
Principles, consistently applied.



5.8. Compliance With Agreements. Promptly and fully comply with all Contractual
Obligations to which any one or more of them is a party, except for any such Contractual
Obligations (a) the performance of which would cause a Default, (b) then being contested by any of
them in good faith by appropriate proceedings or (c) the failure with which to comply would not
reasonably be expected to constitute a Material Adverse Effect.



5.9. Use of Proceeds. Use the proceeds of all Loans and issuances of Letters of
Credit for (i) Permitted Business Activities (including without limitation the funding of costs
associated with the development and/or redevelopment of Projects and other costs incurred in the
acquisition, operation, sale, financing and management of Projects and the making of Investments
permitted pursuant to Section 6.13), (ii) the refinancing or repayment of existing and
future Indebtedness (including without limitation Debt Offerings and other convertible debt) and
(iii) as working capital or for other general corporate purposes.



5.10. Hazardous Materials Laws. Keep and maintain all Projects and each portion
thereof in compliance in all material respects with all applicable material Hazardous Materials
Laws and promptly notify the Administrative Agent in writing (attaching a copy of any pertinent
written material) (which notice and attached materials the Administrative Agent agrees to promptly
forward to the Lenders) of (a) any and all material enforcement, cleanup, removal or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency pursuant to any
applicable material Hazardous Materials Laws, (b) any and all material claims
made or threatened in writing by any Person against Borrower and Guarantor or their respective
Subsidiaries relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials and (c) discovery by any Senior Officer of any of Borrower
and Guarantor or any of their respective Subsidiaries of any material occurrence or condition on
any Project that could reasonably be expected to cause such Project to be subject to any
restrictions on the ownership, occupancy, transferability or use of such Project under any
applicable Hazardous Materials Laws.


 


- 53 -









 






5.11. [Intentionally Omitted.].



5.12. REIT Status. Maintain the status and election of Parent as a “real estate
investment trust” under §856 of the Code and comply with the dividend and other requirements
applicable under §857(a) of the Code.




5.13. [Intentionally Omitted.]



5.14. Inspection of Properties and Books. Not more often than once per calendar year
(unless an Event of Default has occurred and is continuing), permit the Lenders, through the
Administrative Agent or any representative designated by the Administrative Agent, at Borrower’s
expense, to visit and inspect any of the Projects of Borrower and Guarantor or any of their
respective Subsidiaries (subject to the rights of any tenants), to examine the books of account of
Borrower and Guarantor and their respective Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of Borrower and Guarantor and their
respective Subsidiaries with, and to be advised as to the same by, their Senior Officers, all at
such reasonable times (during normal business hours) and intervals as the Administrative Agent or
any Lender may reasonably request upon reasonable notice; provided, however, that inspections made
at Borrower’s expense shall be limited to once per year, unless an Event of Default shall have
occurred and be continuing. The Lenders shall use good faith efforts to coordinate such visits and
inspections so as to minimize the interference with and disruption to Borrower’s and Guarantor’s or
such Subsidiaries’ normal business operations.



5.15. More Restrictive Agreements. Promptly notify the Administrative Agent should
Guarantor or any Subsidiary of Borrower and Guarantor enter into or modify any agreements or
documents pertaining to any existing or future Indebtedness, Debt Offering or issuance of Preferred
Equity, which agreements or documents include covenants, whether affirmative or negative, which are
individually or in the aggregate more restrictive as to the matters covered by the definitions of
the term “Total Unencumbered Asset Value”, or the provisions of Sections 6.1, 6.3,
6.5 through 6.13, inclusive (or any other provisions which may have the same
practical effect as any of the foregoing) against any of Borrower and Guarantor or their respective
Subsidiaries than those set forth herein. If requested by the Requisite Lenders, Borrower,
Guarantor, the Administrative Agent, and the Requisite Lenders shall promptly amend this Agreement
and the other Loan Documents to include some or all of such more restrictive provisions, in each
case solely for the duration of such restrictive provisions under such other agreements or
documents, as determined by the Requisite Lenders in their sole reasonable discretion.
Notwithstanding the foregoing, this Section 5.15 shall not apply to covenants contained in
any agreements or documents that relate only to a specific Project that is collateral for any
existing or future Indebtedness of any of Borrower or their Subsidiaries that is permitted by the
terms of this Agreement.


 


- 54 -









 





5.16. Distributions of Income to Borrower and Guarantor. Cause all of their
respective Subsidiaries to promptly transfer to Borrower or Guarantor (but not less frequently than
once each Fiscal Quarter), whether in the form of dividends, distributions or otherwise, all
profits, proceeds or other income relating to or arising from a Subsidiary’s use, operation,
financing, refinancing, sale or other disposition of their respective Property in excess of the
reasonably anticipated short term capital needs of such Subsidiary.



ARTICLE 6




NEGATIVE COVENANTS




So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any
other Obligation remains unpaid, or any portion of the Commitments remains in force, Borrower and
Guarantor and their respective Subsidiaries shall not, unless the Administrative Agent (with the
written approval of the Requisite Lenders or, if required by Section 12.1, of all of the
Lenders) otherwise consents:



6.1. Mergers and Consolidations. Merge or consolidate with or into any Person, except
a merger or consolidation of Borrower with or into Guarantor or one or more Subsidiaries of
Borrower or Guarantor with and into Borrower or Guarantor or another Subsidiary of Borrower or
Guarantor, provided that in all cases Parent and Borrower must both be surviving entities and
Borrower and Guarantor must remain in compliance with all of the conditions, conditions, covenants
and restrictions imposed by this Agreement.



6.2. ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any non
exempt “prohibited transaction” (as defined in Section 4975 of the Code) that would constitute a
Material Adverse Effect, (ii) fail to comply with ERISA in a manner that would constitute a
Material Adverse Effect, (iii) incur any material “accumulated funding deficiency” (as defined in
Section 302 of ERISA) to the extent that it would constitute a Material Adverse Effect or (iv)
terminate in any manner that would constitute a Material Adverse Effect, or (b) withdraw,
completely or partially, from any Multiemployer Plan if to do so would constitute a Material
Adverse Effect.



6.3. Permitted Business Activities. Engage in or pursue any business or other
activities or ventures other than Permitted Business Activities.



6.4. Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of Borrower or Guarantor or their respective Subsidiaries other than (a) salary, bonus,
employee stock option, relocation assistance and other compensation arrangements with employees,
directors or officers in the ordinary course of business, (b) transactions that are fully disclosed
to the board of directors of Parent and expressly authorized by a resolution of the board of
directors of Parent which is approved by a majority of the directors not having an interest in the
transaction, (c) transactions expressly permitted by this Agreement, (d) transactions between
Borrower and Guarantor or one Subsidiary and another Subsidiary or one Subsidiary and either of
Borrower or Guarantor and (e) transactions on overall terms at least as favorable to Borrower or
Guarantor or their Subsidiaries as would be the case in an arm’s length transaction between
unrelated parties of equal bargaining power.


 


- 55 -









 





6.5. Overall Leverage Ratio. Permit the Overall Leverage Ratio to be greater than
60%.



6.6. Unsecured Leverage Ratio. Permit the Unsecured Leverage Ratio to be greater than
60%.



6.7. Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio, as of any day, to
be less than 1.50 to 1.00.



6.8. Distributions. During the continuance of any Event of Default, make any
Distributions, provided that Parent shall be permitted to pay the minimum Distribution required
under the Code to maintain and preserve Parent’s status as a real estate investment trust under the
Code, as evidenced by a certification of a Senior Officer of Parent containing calculations in
reasonable detail satisfactory in form and substance to the Administrative Agent, provided that if
a monetary Event of Default or an Event of Default which involves the bankruptcy of Borrower or
Guarantor or which has resulted in an acceleration of the Obligations hereunder occurs, no further
Distributions may be made. Notwithstanding the foregoing, Parent, as sole general partner of
Borrower, shall be permitted at all times at its election to redeem limited partner equity
interests in Borrower (which are not owned by Parent) for cash, in any circumstance where Parent
deems, in its reasonable discretion, that it is precluded from redeeming limited partner equity
interests in Borrower (which are not owned by Parent) for equity in Parent, due to applicable Laws.



6.9. Net Worth. Permit Net Worth, as of any date, to be less than the sum of (a)
$2,000,000,000, plus (b) seventy-five percent (75%) of the net proceeds from any Equity Offering of
Guarantor made after the Closing Date.



6.10. Unsecured Debt Service Coverage. Permit the Unsecured Debt Service Coverage
Ratio, as of any date, to be less than 2.00 to 1.00.



6.11. Secured Indebtedness. Permit Secured Indebtedness of the Consolidated Group to
exceed, as of any date, an amount equal to 40% of then-current Gross Asset Value.




6.12. [Intentionally Omitted.]



6.13. Permitted Investments. Permit the aggregate amount of actual cash or other
consideration invested by the Consolidated Group in the Investments listed below as subparagraphs
(a) through (d) to exceed 25% of Gross Asset Value:



(a) Investments in undeveloped land owned by the Consolidated Group plus the Consolidated
Group Pro Rata Share of undeveloped land owned by Investment Affiliates (with undeveloped land
valued at cost);



(b) Investments in Projects owned by the Consolidated Group that are under development, plus
the Consolidated Group Pro Rata Share of any amounts so invested by the Investment Affiliates in
Projects owned by the Investment Affiliates that are under development (with Projects under
development ceasing to be treated as such when GAAP permits such Project to be classified as an
operating asset);


 


- 56 -









 





(c) Investments in or with respect to Investment Affiliates that are not already captured by
Sections 6.13 (a)-(c); and



(d) Investments in the life science industry and other technologies consistent with the
businesses of Borrower’s tenants, either (i) directly through the holding of debt or equity in
public or private companies (A) whose primary business is medical, pharmaceutical, biotech, the
life science industry or other technologies consistent with the businesses of Borrower’s tenants or
(B) that own or develop real estate assets (either as owner, occupier or a third party
developer/property manager) for the medical, pharmaceutical, biotech, life science industries or
other industries consistent with the business of Borrower’s tenants or (ii) indirectly through the
holding of interests in funds or other investment partnerships that invest in the aforementioned
types of companies.



6.14. Liens. Create, incur, or suffer to exist any Negative Pledge (other than the
Loan Documents) or Lien in, of or on the Project of any member of the Consolidated Group, except:



(a) Liens for taxes, assessments or governmental charges or levies on its Property if the same
shall not at the time be delinquent or thereafter can be paid without material penalty, or are
being contested in good faith and by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;



(b) Liens imposed by Law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment of obligations not
more than 60 days past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on their books;



(c) Liens arising out of pledges or deposits under workers’ compensation laws, unemployment
insurance, old age pensions, or other social security or retirement benefits, or similar
legislation;



(d) easements, restrictions and such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties of a similar character (including,
without limitation, Liens with respect to rights of tenants under lease and rental agreements
entered into in the ordinary course of business) and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of Borrower or any
other member of the Consolidated Group;



(e) any other Liens that, individually or in the aggregate, would not reasonably be expected
to impair the ability to place mortgage financing on the Project encumbered by such Liens or
otherwise constitute a Material Adverse Effect or subject such Project to a material impending risk
of loss of forfeiture or a material loss of value; and



(f) Liens (other than Liens described in subsections (a) through (e) above) arising in
connection with any Indebtedness permitted hereunder to the extent such Liens will not result in a
Default in any of Borrower’s covenants herein, which Liens may be of any priority and any type,
including, without limitation, senior or junior mortgages or deeds of trust or pledges of equity
interests.


 


- 57 -









 





Liens permitted pursuant to this Section 6.14 shall be deemed to be “Permitted Liens.”



6.15. [Intentionally Omitted.]



6.16. Formation Documents. Permit any material change to the articles of
incorporation, bylaws, partnership agreement or any other material formation documents of Parent or
the Operating Partnership without the written consent of the Requisite Lenders, other than with
respect to changes made in connection with any preferred Equity Offering to reflect the terms of
the preferred securities being issued thereunder and any other amendments incidental thereto which
may be made without the Requisite Lenders consent, so long as the Administrative Agent has reviewed
such changes and confirmed that the terms of such preferred securities are customary and do not
create any creditors’ rights that would adversely affect in any material respect the rights of the
Lenders hereunder.



ARTICLE 7




INFORMATION AND REPORTING REQUIREMENTS




7.1. Financial and Business Information. So long as any Advance remains unpaid, or
any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of
the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders (and the Administrative Agent agrees to
so distribute such materials to the Lenders promptly after receipt thereof) a sufficient number of
copies for all of the Lenders of the following:



(a) As soon as practicable, and in any event within fifty (50) days after the end of each
Fiscal Quarter (other than the fourth Fiscal Quarter in any Fiscal Year), a copy of Borrower’s 10-Q
for such Fiscal Quarter as filed with the Securities and Exchange Commission, which will include a
consolidated balance sheet, income statement and statement of cash flows of the Consolidated Group
as at the end of such Fiscal Quarter and for such Fiscal Quarter, and the portion of the Fiscal
Year ended with such Fiscal Quarter, all in reasonable detail, and shall be certified by the
Parent’s chief executive officer, chief financial officer or chief accounting officer as fairly
presenting the financial condition, results of operations and cash flows of the Consolidated Group
in accordance with Generally Accepted Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject only to normal year end
accruals and audit adjustments;



(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each
Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100)
days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of
such Fiscal Quarter, providing reasonable detail as to the calculation thereof;



(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each
Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100)
days after the end of such fourth Fiscal Quarter, a statement of Funds From Operations in such
detail as the Administrative Agent may reasonably require;



(d) All written information provided to shareholders of Parent;


 


- 58 -









 





(e) As soon as practicable, and in any event within one hundred (100) days after the end of
each Fiscal Year, a copy of Borrower’s Form 10-K for such Fiscal Quarter as required by and filed
with the Securities and Exchange Commission which will include a consolidated balance sheet, income
statement and statement of cash flows, of the Consolidated Group for such Fiscal Year, all in
reasonable detail, and shall be certified by KPMG or other independent public accountants of
recognized standing selected by Parent and reasonably satisfactory to the Requisite Lenders, and
shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders in their good faith business
judgment to be adverse to the interests of the Lenders;



(f) Upon request by the Administrative Agent, as soon as practicable, and in any event before
the commencement of each Fiscal Year, a budget and projection by Fiscal Quarter for that Fiscal
Year for the Consolidated Group, all in reasonable detail;



(g) Promptly after request by the Administrative Agent or any Lender, copies of any detailed
audit reports, management letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of Parent by independent accountants in connection with
the accounts or books of Parent or any other member of the Consolidated Group, or any audit of any
of them;



(h) Promptly after the same are available, and in any event within ten (10) days after filing
with the Securities and Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Parent, and copies of all
annual, regular, periodic and special reports and registration statements which Parent may file or
be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section 7.1;



(i) Promptly after request by the Administrative Agent or any Lender, copies of any other
material report or other document that was filed by the Consolidated Group with any Governmental
Agency;



(j) Promptly upon a Senior Officer becoming aware, and in any event within five (5) Banking
Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined
in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived
the requirement therein contained that it be notified within thirty days of the occurrence of such
event) or (ii) non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic
notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and specifying what action the
Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto;


 


- 59 -









 





(k) As soon as practicable, and in any event within ten (10) Banking Days after a Senior
Officer becomes aware of the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of existence
thereof, and, no more than ten (10) Banking Days after such telephonic notice, written notice
again specifying the nature and period of existence thereof and specifying what action the
Consolidated Group is taking or propose to take with respect thereto;



(l) Promptly upon a Senior Officer becoming aware that (i) any Person has commenced a legal
proceeding with respect to a claim against Guarantor that is $5,000,000 or more in excess of the
amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement
involving Indebtedness of $25,000,000 or more or any lessor under a lease involving aggregate
annual rent of $5,000,000 or more has asserted a default thereunder on the part of Guarantor or,
(iii) any Person has commenced a legal proceeding with respect to a claim against Guarantor under a
contract (that is not a credit agreement or material lease) in excess of $10,000,000 or which
otherwise would constitute a Material Adverse Effect, a written notice describing the pertinent
facts relating thereto and what action the Borrower and Guarantor are taking or propose to take
with respect thereto;



(m) Promptly upon a Senior Officer becoming aware of, and in any event within five (5) Banking
Days after the occurrence of, any change in a Credit Rating of the Parent, a written notice
describing such change.



(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated
Group (including the fourth fiscal quarter in each year), a list (which may be included in the
Compliance Certificates) setting forth the following information with respect to each new
Subsidiary or Controlled Entity of the Borrower and Guarantor: (i) the name, structure and
ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such
Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may
reasonably request;



(o) Simultaneously with the delivery of the financial statements referred to in Section
7.1(e) above (if such information is not otherwise included in the financial statements or
other information presented to the Lenders pursuant to this Section 7.1), a statement
(which may be included in the Compliance Certificates) listing (i) the Projects owned by the
Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location
thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the
Indebtedness of the Consolidated Group, which statement shall include, without limitation, a
statement of the original principal amount of such Indebtedness and the current amount outstanding,
the holder thereof, the maturity date and any extension options, the interest rate, the collateral
provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii)
the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief
summary of the status of such Unstabilized Projects; and



(p) Such other data and information as from time to time may be reasonably requested by the
Administrative Agent, any Lender (through the Administrative Agent) or the Requisite Lenders.



7.2. Compliance Certificates. So long as any Advance remains unpaid, or any Letter of
Credit remains outstanding, or any other Obligation remains unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall, at Borrower’s sole expense, deliver to the
Administrative Agent, for distribution by it to the Lenders concurrently with the
filings and statements required pursuant to Sections 7.1(a), 7.1(c) and
7.1(e), Compliance Certificates signed by a Senior Officer.


 


- 60 -









 





ARTICLE 8




CONDITIONS




8.1. Initial Advances. The obligation of each Lender to make the initial Advance to
be made by it or of the Administrative Agent to issue the initial Letters of Credit is subject to
the following conditions precedent, each of which shall be satisfied prior to the making of the
initial Advances (unless all of the Lenders, in their sole and absolute discretion, shall agree
otherwise):



(a) The Administrative Agent shall have received all of the following, each of which shall be
originals unless otherwise specified, each properly executed by a Responsible Official of each
party thereto, each dated as of the Closing Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in the case of the date
of any of the following, unless the Administrative Agent otherwise agrees or directs):



(i) at least one (1) executed counterpart of this Agreement and of the Guaranty, together with
arrangements satisfactory to the Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and Borrower;



(ii) Line Notes executed by Borrower in favor of each Lender, each in a principal amount equal
to that Lender’s Percentage of the Aggregate Commitment;




(iii) Competitive Bid Notes executed by Borrower in favor of each Lender;



(iv) Swing Loan Note executed by Borrower in favor of the Swing Loan Lender in the principal
amount of the Swing Loan Commitment;



(v) with respect to each of the Borrower and Guarantor, such documentation as the
Administrative Agent may reasonably require to establish the due organization, valid existence and
good standing of each of the Borrower and Guarantor, its qualification to engage in business in
each material jurisdiction in which it is engaged in business or required to be so qualified, its
authority to execute, deliver and perform the Loan Documents to which it is a Party, the identity,
authority and capacity of each Responsible Official thereof authorized to act on its behalf,
including certified copies of articles of incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing and/or qualification to engage in business, tax
clearance certificates, certificates of corporate resolutions, incumbency certificates,
Certificates of Responsible Officials, and the like;




(vi) the Opinions of Counsel; and



(vii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or the Requisite Lenders reasonably may require.


 


- 61 -









 






(b) All of the fees then required to have been paid under the Fee Letter shall have been paid.



(c) The reasonable costs and expenses of the Administrative Agent in connection with the
preparation of the Loan Documents payable pursuant to Section 11.3, and invoiced to
Borrower on or prior to the Closing Date, shall have been paid.



(d) The representations and warranties of Borrower contained in Article 4 shall be
true and correct in all material respects.



(e) Borrower and Guarantor shall be in compliance with all the terms and provisions of the
Loan Documents, and giving effect to the initial Advance no Default or Event of Default shall have
occurred and be continuing.



(f) All legal matters relating to the Loan Documents shall be satisfactory to counsel for the
Administrative Agent.



(g) The Administrative Agent shall have received a Compliance Certificate (including existing
Total Unencumbered Asset Value calculations) dated as of the Closing Date demonstrating compliance
with each of the then applicable covenants calculated therein.



(h) Evidence that the Prior Agreement has been properly terminated in accordance with its
terms and any amounts due to the lenders under the Prior Agreement have been paid in full, or will
be paid in full out of the initial Advances hereunder.



(i) The Administrative Agent shall have reviewed such other documents, instruments,
certificates, opinions, assurances, consents and approvals as the Administrative Agent or the
Administrative Agent’s special counsel may reasonably have requested.



8.2. Any Advance. The obligation of each Lender to make any Advance or of the Swing
Loan Lender to make a Swing Loan or of the Administrative Agent to issue a Letter of Credit is
subject to the following conditions precedent (unless the Requisite Lenders, in their sole and
absolute discretion, shall agree otherwise):



(a) except (i) for representations and warranties which expressly speak as of a particular
date or are no longer true and correct as a result of a change which is permitted by this Agreement
or (ii) as disclosed by Borrower and approved in writing by the Requisite Lenders, the
representations and warranties contained in Article 4 shall be true and correct in all
material respects on and as of the date of the Advance as though made on that date;



(b) the Administrative Agent shall have timely received a Request for Loan, a Competitive Bid
Request or Letter of Credit Request in compliance with Article 2;




(c) no Default or Event of Default shall have occurred and be continuing;



(d) if requested by the Administrative Agent, the Administrative Agent shall have received a
current calculation of the Total Unencumbered Asset Value with such supporting information as the
Administrative Agent may require adjusted in the best good faith estimate of Borrower to the date
of such certification; and


 


- 62 -









 





(e) the Administrative Agent shall have received, in form and substance satisfactory to the
Administrative Agent, such other assurances, certificates, documents or consents related to the
foregoing as the Administrative Agent or Requisite Lenders reasonably may require.



ARTICLE 9




EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT




9.1. Events of Default. The existence or occurrence of any one or more of the
following events, whatever the reason therefor and under any circumstances whatsoever, shall
constitute an “Event of Default”:



(a) Borrower fails to pay any principal on any of the Notes, or any portion thereof, on the
date when due; or



(b) Borrower fails to pay any interest on any of the Notes, or any portion thereof, within
five (5) Banking Days after the date when due; or Borrower fails to pay any fees under the Fee
Letter or any other fee or amount payable to the Lenders or the Administrative Agent under any Loan
Document, or any portion thereof, within ten (10) Banking Days after demand therefor; or



(c) Borrower fails to comply with any term, covenant, condition or agreement contained in
Article 6, provided that in the case of such a failure to comply with Sections
6.1, 6.2, 6.3, 6.4, 6.14 and 6.16 only, such failure
shall continue for a period of 10 days after the earlier of (x) the date upon which a Senior
Officer obtains knowledge of such failure or (y) the date upon which Borrower has received a
written notice of such failure from the Administrative Agent given at the direction of the
Requisite Lenders; or



(d) Borrower shall fail to comply with Section 7.1(k) in any way that is materially
adverse to the interests of the Lenders; or



(e) Borrower or Guarantor fails to perform or observe any other covenant or agreement (not
specified in clause (a), (b) or (c) above, or otherwise set forth below in this Section
9.1) contained in any Loan Document on its part to be performed or observed within thirty (30)
days after the giving of notice by the Administrative Agent on behalf of the Requisite Lenders of
such Default or, if such Default is not reasonably susceptible of cure within such period, within
such longer period as is reasonably necessary to effect a cure so long as Borrower or Guarantor
continues to diligently pursue cure of such Default but not in any event in excess of ninety (90)
days; and provided further, however, that notwithstanding the 30-day cure period or extended cure
period described above in this clause (e), if a different notice or cure period is specified under
any Loan Document or under any provision of the Loan Documents as to any such failure or breach,
the specific Loan Document or provision shall control, and Borrower or Guarantor shall have no more
time to cure the failure or breach than is allowed under the specific Loan Document or provision as
to such failure or breach; or


 


- 63 -









 





(f) Any representation or warranty of Borrower or Guarantor made in any Loan Document, or in
any certificate or other writing delivered by Borrower or Guarantor
pursuant to any Loan Document, proves to have been incorrect when made or reaffirmed in any
respect that is materially adverse to the interests of the Lenders; or



(g) Borrower or Guarantor or any other member of the Consolidated Group fails to perform or
observe any other term, covenant or agreement on its part to be performed or observed within any
applicable notice and cure period, or suffers any such event of default to occur, in connection
with (A) any present or future Indebtedness (other than Non-Recourse Indebtedness) having an
outstanding principal balance, individually or in the aggregate of $25,000,000 or more, or (B) any
present or future Non-Recourse Indebtedness having an outstanding principal balance, individually
or in the aggregate, of $65,000,000 or more (provided, that for the purpose of this clause (g), the
principal amount of Indebtedness consisting of a Swap Agreement shall be the amount which is then
payable by the counterparty to close out the Swap Agreement); or



(h) Any Loan Document, at any time after its execution and delivery and for any reason other
than the agreement or action (or omission to act) of the Administrative Agent or the Lenders or
satisfaction in full of all the Obligations ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect
which is materially adverse to the interests of the Lenders; or Borrower or Guarantor denies in
writing that it has any or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or



(i) A final judgment against Borrower or Guarantor or any other member of the Consolidated
Group is entered for the payment of money in excess of $50,000,000 (not covered by insurance or for
which an insurer has reserved its rights) and, absent procurement of a stay of execution, such
judgment remains unsatisfied for sixty (60) calendar days after the date of entry of judgment, or
in any event later than ten (10) days prior to the date of any proposed sale thereunder; or any
writ or warrant of attachment or execution or similar process is issued or levied against all or
any material part of the Property of any such Person and is not released, vacated or fully bonded
within sixty (60) calendar days after its issue or levy; or



(j) Borrower or Guarantor or any other member of the Consolidated Group institutes or consents
to the institution of any proceeding under a Debtor Relief Law relating to it or to all or any
material part of its Property, or is unable or admits in writing its inability to pay its debts as
they mature, or makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues undischarged or unstayed for
sixty (60) calendar days; or any proceeding under a Debtor Relief Law relating to any such Person
or to all or any part of its Property is instituted without the consent of that Person and
continues undismissed or unstayed for sixty (60) calendar days or such Person consents thereto or
acquiesces therein, or a decree or order for relief is entered in respect of any such Person in
such proceeding; or



(k) The occurrence of an Event of Default (as such term is or may hereafter be specifically
defined in any other Loan Document) under any other Loan Document; or


 


- 64 -









 





(l) Any Pension Plan maintained by any member of the Consolidated Group is determined to have
a material “accumulated funding deficiency” as that term is defined in Section 302 of ERISA of an
amount that would constitute a Material Adverse Effect; or



(m) (i) any person or group is or becomes the beneficial owner, directly or indirectly, of
more than 35% of the total voting power of the then outstanding voting stock of Parent; or (ii)
during any period of 12 consecutive months, individuals who at the beginning or any such 12-month
period constituted the Board of Directors of Parent (together with any new directors whose election
by such Board or whose nomination for election by the shareholders of Parent 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 but excluding
any director whose initial nomination for, or assumption of office as, a director occurs as a
result of an actual or threatened solicitation of proxies or consents for the election or removal
of one or more directors by any person or group other than a solicitation for the election of one
or more directors by or on behalf of the Board of Directors) cease for any reason to constitute at
least two thirds of the Board of Directors of Parent; or



(n) Failure to remediate within the time period permitted by Law or governmental order, after
all administrative hearings and appeals have been concluded (or within a reasonable time in light
of the nature of the problem if no specific time period is so established), material environmental
problems at Projects owned by Borrower or Guarantor or any other member of the Consolidated Group
or any Investment Affiliate which contribute in the aggregate in excess of $10,000,000 to Gross
Asset Value.



9.2. Remedies Upon Event of Default. Without limiting any other rights or remedies of
the Administrative Agent or the Lenders provided for elsewhere in this Agreement, or the other Loan
Documents, or by applicable Law, or in equity, or otherwise:



(a) Upon the occurrence, and during the continuance, of any Event of Default other than an
Event of Default described in Section 9.1(j):



(i) the commitments to make Advances and Swing Loans and to issue Letters of Credit and all
other obligations of the Administrative Agent or the Lenders and all rights of Borrower and
Guarantor under the Loan Documents shall be suspended without notice to or demand upon Borrower,
which are expressly waived by Borrower, except that all of the Lenders or the Requisite Lenders (as
the case may be, in accordance with Section 12.1) may waive an Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to the Lenders or Requisite Lenders, as
the case may be, to reinstate the Commitments and such other obligations and rights and make
further Advances and Swing Loans and to issue Letters of Credit, which waiver or determination
shall apply equally to, and shall be binding upon, all the Lenders; and



(ii) the Requisite Lenders may request the Administrative Agent to, and the Administrative
Agent thereupon shall, terminate the Commitments and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by Borrower.


 


- 65 -









 





(b) Upon the occurrence and during the continuance of any Event of Default described in
Section 9.1(j):



(i) the commitments to make Advances and Swing Loans and to issue Letters of Credit and all
other obligations of the Administrative Agent or the Lenders and all rights of Borrower and any
Guarantor under the Loan Documents shall terminate without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all of the Lenders or the Requisite Lenders (as the
case may be, in accordance with Section 12.1) may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all the Lenders, to reinstate the
Commitments and such other obligations and rights and make further Advances and Swing Loans and to
issue Letters of Credit, which determination shall apply equally to, and shall be binding upon, all
the Lenders; and



(ii) the unpaid principal of all Notes, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents shall be forthwith due and payable, all without protest,
presentment, notice of dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower.



(c) Upon the occurrence and during the continuance of any Event of Default, the Administrative
Agent, on behalf of the Lenders, without notice to (except as expressly provided for in any Loan
Document) or demand upon Borrower, which are expressly waived by Borrower (except as to notices
expressly provided for in any Loan Document), may proceed (but only with the consent of the
Requisite Lenders) to protect, exercise and enforce their rights and remedies under the Loan
Documents against Borrower and Guarantor and such other rights and remedies as are provided by Law
or equity.



(d) The order and manner in which the Lenders’ rights and remedies are to be exercised shall
be determined by the Requisite Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied first to the costs and
expenses (including reasonable attorneys’ fees and disbursements and the reasonably allocated costs
of attorneys employed by the Administrative Agent or by any Lender) of the Administrative Agent and
of the Lenders, then to the repayment of Swing Loans, and thereafter paid pro rata to the Lenders
in the same proportions that the aggregate Obligations owed to each Lender under the Loan Documents
bear to the aggregate Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the Administrative Agent and
the Lenders, as set forth above, second, to the payment of interest and principal (in that order)
due on Swing Loans, third, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of the Loan Documents), and fourth,
pari passu to the payment of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents and to the payment of any termination
payments due from Borrower in respect of Swap Agreements. No application of payments under this
clause (d) will cure any Event of Default, or prevent acceleration, or continued acceleration, of
amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights
or remedies of the Lenders hereunder or thereunder or at Law or in equity.


 


- 66 -









 





(e) Upon the occurrence, and during the continuance, of any Event of Default, or to the extent
required pursuant to Section 2.6(a) or Section 3.1 above, Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the
Letter of Credit Exposure (or that portion thereof required under Section 2.6(a)) at such
time. Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders under the
Facility, a security interest in such cash collateral to secure all obligations of Borrower in
respect of such Letters of Credit under this Agreement and the other Loan Documents. Borrower
shall execute and deliver to the Administrative Agent, for the account of the Lenders under the
Facility, such further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of such security interest in such cash collateral account.
Amounts held in such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay
other Obligations of Borrower hereunder and under any Notes. After all such Letters of Credit
shall have expired or been fully drawn upon, all obligations under the Letters of Credit shall have
been satisfied and all other Obligations of Borrower hereunder and under any Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be returned to Borrower.
In addition, at any time that amounts are being held in such cash collateral account and the
Aggregate Commitment exceeds the Outstanding Facility Amount, the balance in such cash collateral
account, to the extent of any such excess of the Aggregate Commitment over the Outstanding Facility
Amount, shall be returned to Borrower promptly after the Administrative Agent’s receipt of a
written request from Borrower.



ARTICLE 10




THE ADMINISTRATIVE AGENT




10.1. Appointment and Authorization. Subject to Section 10.8, each Lender
hereby irrevocably appoints and authorizes the Administrative Agent to take such action as the
contractual representative on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Administrative Agent by the terms thereof or are reasonably incidental, as
determined by the Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not constitute
appointment of the Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.



10.2. Administrative Agent and Affiliates. KeyBank (and each successor Administrative
Agent in its individual capacity) has the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not the Administrative Agent, and the term
“Lender” or “Lenders” includes KeyBank in its individual capacity. KeyBank (and each successor
Administrative Agent in its individual capacity) and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business with Borrower or any
other member of the Consolidated Group, as if it were not the Administrative Agent and without any
duty to account therefor to the Lenders. KeyBank (and each successor Administrative Agent in its
individual capacity) need not account to any other Lender for any monies received by it for
reimbursement of its costs and expenses as the Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender
hereunder, other than as required of any Lender hereunder. The Administrative Agent shall not
be deemed to hold a fiduciary or agency relationship with any Lender and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or otherwise exist against the Administrative Agent. The provisions of this Section 10.2
shall apply equally to any other agents named herein.


 


- 67 -









 





10.3. Proportionate Interest in any Collateral. The Administrative Agent, on behalf
of all the Lenders, shall hold in accordance with the Loan Documents all items of collateral (if
any) or interests therein received or held by the Administrative Agent. Subject to the
Administrative Agent’s and the Lenders’ rights to reimbursement for their costs and expenses
hereunder (including reasonable attorneys’ fees and disbursements and other professional services
and the reasonably allocated costs of attorneys employed by the Administrative Agent or, upon the
occurrence and during the continuation of an Event of Default, a Lender) and subject to the
application of payments in accordance with Section 9.2(d), each Lender shall have an
interest in the Administrative Agent’s interest in such collateral (if any) or interests therein in
the same proportions that the aggregate Obligations owed such Lender under the Loan Documents bear
to the aggregate Obligations owed under the Loan Documents to all the Lenders, without priority or
preference among the Lenders.



10.4. Lenders’ Credit Decisions. Each Lender agrees that it has, independently and
without reliance upon the Administrative Agent, any other Lender or the directors, officers,
agents, employees or attorneys of the Administrative Agent or of any other Lender, and instead in
reliance upon information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit analysis and decision to
enter into this Agreement. Each Lender also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan Documents.




10.5. Action by Administrative Agent.



(a) Absent actual knowledge of the Administrative Agent of the existence of a Default, the
Administrative Agent may assume that no Default (other than the failure to make a payment of
principal or interest when due) has occurred and is continuing, unless the Administrative Agent has
received notice from Borrower stating the nature of the Default or has received notice from a
Lender stating the nature of the Default and that such Lender considers the Default to have
occurred and to be continuing.



(b) The Administrative Agent has only those obligations under the Loan Documents as are
expressly set forth therein.



(c) Except for any obligation expressly set forth in the Loan Documents and as long as the
Administrative Agent may assume that no Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to comply with the instructions of the Requisite Lenders (or
of all the Lenders, to the extent required by Section 12.1) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, provided that
the Administrative Agent shall not be required to comply with such instructions if to do so
would be contrary to any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to the Administrative Agent.


 


- 68 -









 





(d) If the Administrative Agent has received a notice specified in clause (a) or has actual
knowledge of the existence of a Default, the Administrative Agent shall promptly give notice
thereof to the Lenders and shall comply with the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 12.1), provided that the Administrative
Agent shall not be required to comply with such instructions if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative Agent, and except that
if the Requisite Lenders (or all the Lenders, if required under Section 12.1) fail, for
five (5) Banking Days after the receipt of notice from the Administrative Agent, to instruct the
Administrative Agent, then the Administrative Agent, in its sole discretion, may act or not act as
it deems advisable for the protection of the interests of the Lenders.



10.6. Liability of Administrative Agent. Neither the Administrative Agent nor any of
its directors, officers, agents, employees or attorneys shall be liable for any action taken or not
taken by them under or in connection with the Loan Documents, except for their own gross negligence
or willful misconduct. Without limitation on the foregoing, the Administrative Agent and its
directors, officers, agents, employees and attorneys:



(a) May treat the payee of any Note as the holder thereof until the Administrative Agent
receives notice of the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Lender as the owner of that Lender’s interest in the
Obligations for all purposes of this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative Agent, signed by
that Lender;



(b) May consult with legal counsel (including in house legal counsel), accountants (including
in house accountants) and other professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for the Consolidated Group or the Lenders, and shall
not be liable for any action taken or not taken by it in good faith in accordance with any advice
of such legal counsel, accountants or other professionals or experts;



(c) Shall not be responsible to any Lender for any statement, warranty or representation made
in any of the Loan Documents or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan Documents;



(d) Shall have no duty to ask or inquire as to the performance or observance by Borrower or
Guarantor of any of the terms, conditions (except to ascertain that documents facially responsive
to the requirements of Article 8 have been delivered) or covenants of any of the Loan
Documents or to inspect any collateral or any Property, books or records of the Borrower and
Guarantor;



(e) Will not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, effectiveness, sufficiency or value of any Loan Document,
any other instrument or writing furnished pursuant thereto or in connection therewith, or any
collateral;


 


- 69 -









 





(f) Will not incur any liability by acting or not acting in reliance upon any Loan Document,
notice, consent, certificate, statement, request or other instrument or writing believed in good
faith by it to be genuine and signed or sent by the proper party or parties;



(g) Will not incur any liability for any arithmetical error in computing any amount paid or
payable by Borrower or Guarantor or paid or payable to or received or receivable from any Lender
under any Loan Document, including, without limitation, principal, interest, commitment fees,
Advances and other amounts; provided that, promptly upon discovery of such an error in computation,
the Administrative Agent, the Lenders and (to the extent applicable) Borrower and/or Guarantor
shall make such adjustments as are necessary to correct such error and to restore the parties to
the position that they would have occupied had the error not occurred; and



(h) Have not made nor do they now make any representations or warranties, express or implied,
nor do they assume any liability to the Lenders, with respect to the creditworthiness or financial
condition of the Consolidated Group, the value of their respective assets or the collectability of
the Loans.



10.7. Indemnification. Each Lender shall, ratably in accordance with its Percentage
of the aggregate Commitments (if the Commitments are then in effect) or in accordance with its
proportion of the aggregate Indebtedness then evidenced by the Notes and Letter of Credit Exposure
(if the Commitments have then been terminated), indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees and
disbursements and allocated costs of attorneys employed by the Administrative Agent) that may be
imposed on, incurred by or asserted against it or them in any way relating to or arising out of the
Loan Documents (other than losses incurred by reason of the failure of Borrower to pay the
Indebtedness represented by the Notes) or any action taken or not taken by it as the Administrative
Agent thereunder, except such as result from its own gross negligence or willful misconduct.
Without limitation on the foregoing, each Lender shall reimburse the Administrative Agent upon
demand for that Lender’s Percentage of any out of pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution, delivery,
amendment, waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that Borrower or
Guarantor is required by Section 11.3 to pay that cost or expense but fails to do so upon
demand. Nothing in this Section 10.7 shall entitle the Administrative Agent or any
indemnitee referred to above to recover any amount from the Lenders if and to the extent that such
amount has theretofore been recovered from Borrower or Guarantor. To the extent that the
Administrative Agent or any indemnitee referred to above is later reimbursed such amount by
Borrower or Guarantor, it shall return the amounts paid to it by the Lenders in respect of such
amount.


 


- 70 -









 





10.8. Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon reasonable notice to the Lenders and Borrower effective not earlier
than thirty (30) days after such notice, upon acceptance of appointment by a successor
Administrative Agent. The Requisite Lenders or all other Lenders other than the Administrative
Agent may (with the prior consent, not to be unreasonably withheld or delayed, of Parent, unless an
Event of Default shall have occurred and be continuing) remove the Administrative Agent from its
capacity as Administrative Agent in the event of the Administrative Agent’s willful misconduct or
gross negligence. If the Administrative Agent shall resign or be removed as Administrative Agent
under this Agreement, the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall require approval
by Parent so long as no Default or Event of Default has occurred and is continuing (and such
approval shall not be unreasonably withheld or delayed). If no successor Administrative Agent is
appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and, so long as no Default or
Event of Default has occurred and is continuing, with the consent of Parent, a successor
Administrative Agent from among the Lenders. Upon the acceptance of its appointment as successor
Administrative Agent hereunder, such successor Administrative Agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”
shall mean such successor Administrative Agent and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated. After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this
Article 10, and Sections 11.3, 11.11 and 11.22, shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. Notwithstanding the foregoing, if (a) the Administrative Agent has not been
paid its administrative agency fees under the Fee Letter or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a period of at least one (1) year
and (b) no successor Administrative Agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent’s notice of resignation,
the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Requisite Lenders appoint a successor Administrative Agent as provided for above. If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (e) of the
definition of “Defaulting Lender”, the Requisite Lenders may, to the extent permitted by applicable
laws, by notice in writing to Borrower and such Person, remove such Person as Administrative Agent
and, in consultation with Borrower, appoint a successor, which shall be a bank with an office in
the United States; provided that, without the consent of Borrower (which shall not be unreasonably
withheld), the Requisite Lenders shall not be permitted to select a successor that is not a U.S.
financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch
of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such
successor shall have been appointed by the Requisite Lenders and shall have accepted such
appointment within thirty (30) days (or such earlier day as shall be agreed by the Requisite
Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in
accordance with such notice on the Removal Effective Date and the rights and responsibilities of
the Administrative Agent shall inure to and be performed by the Requisite Lenders pending such
appointment and acceptance.


 


- 71 -









 





10.9. No Obligations of Borrower. Nothing contained in this Article 10 shall
be deemed to impose upon Borrower any obligation in respect of the due and punctual performance by
the Administrative Agent of its obligations to the Lenders under any provision of this
Agreement, and Borrower shall have no liability to the Administrative Agent or any of the
Lenders in respect of any failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement. Without limiting the
generality of the foregoing, where any provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that such payments shall be made by
Borrower to the Administrative Agent for the account of the Lenders, Borrower’s obligations to the
Lenders in respect of such payments shall be deemed to be satisfied upon the making of such
payments to the Administrative Agent in the manner provided by this Agreement.



10.10. Agents. Neither the Co-Lead Arrangers nor the Syndication Agent nor the
Documentation Agent as shown on the cover of this Agreement have any additional rights or
obligations under the Loan Documents, except for those rights or obligations, if any, as a Lender.



ARTICLE 11




MISCELLANEOUS




11.1. Cumulative Remedies; No Waiver. The rights, powers, privileges and remedies of
the Administrative Agent and the Lenders provided herein or in any Note or other Loan Document are
cumulative and not exclusive of any right, power, privilege or remedy provided by Law or equity.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right,
power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or further exercise of
the same or any other right, power, privilege or remedy. The terms and conditions of Article
8 hereof are inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent’s or the Lenders’ rights to assert them in whole or in
part in respect of any other Loan.




11.2. [Intentionally Omitted.]



11.3. Costs, Expenses and Taxes. Borrower shall pay within five (5) Banking Days
after demand, accompanied by an invoice therefor, the reasonable costs and expenses of the
Administrative Agent in connection with the negotiation, preparation, syndication, execution,
delivery, administration and interpretation of the Loan Documents and any amendment thereto or
waiver thereof. Following and during the continuation of an Event of Default, Borrower shall also
pay on demand, accompanied by an invoice therefor, the reasonable costs and expenses of the
Administrative Agent and the Lenders in connection with the refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or attempted enforcement of
the Loan Documents, and any matter related thereto. The foregoing costs and expenses shall include
filing fees, recording fees, title insurance fees, appraisal fees, search fees, and other out of
pocket expenses and the reasonable fees and out of pocket expenses of any legal counsel (including
reasonably allocated costs of legal counsel employed by the Administrative Agent or any Lender),
independent public accountants and other outside experts retained by the Administrative Agent or
any Lender, whether or not such costs and expenses are incurred or suffered by the Administrative
Agent or any Lender in connection with or during the course of any


 


- 72 -









 






bankruptcy or insolvency
proceedings of any member of the Consolidated Group. Borrower shall pay any and all documentary and other taxes, excluding (i) taxes imposed on or measured
in whole or in part by any Lender’s overall net income imposed on such Lender (including taxes on
gross income imposed in lieu of net income, minimum taxes or branch profits taxes) by (A) any
jurisdiction (or political subdivision thereof) in which such Lender is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof)
in which such Lender is “doing business” or (ii) any withholding taxes or other taxes based on
gross income imposed by the United States of America for any period with respect to which any
Lender has failed, for any reason, to provide Borrower with the appropriate form or forms required
by Section 11.21, to the extent such forms are then required by applicable Laws to
establish a complete exemption, and all costs, expenses, fees and charges payable or determined to
be payable in connection with the filing or recording of this Agreement, any other Loan Document or
any other instrument or writing to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on the
terms set forth in Section 11.11 the Administrative Agent and the Lenders from and against
any and all loss, liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that any of them may
suffer or incur by reason of the failure of any Party to perform any of its Obligations. Any
amount payable to the Administrative Agent or any Lender under this Section 11.3 shall bear
interest from the fifth Banking Day following the date of demand for payment at the Default Rate.



11.4. Nature of Lenders’ Obligations. The obligations of the Lenders hereunder are
several and not joint or joint and several. Nothing contained in this Agreement or any other Loan
Document and no action taken by the Administrative Agent or the Lenders or any of them pursuant
hereto or thereto may, or may be deemed to, make the Lenders a partnership, an association, a joint
venture or other entity, either among themselves or with Borrower or any other member of the
Consolidated Group. A default by any Lender will not increase the Percentage of the Commitments
attributable to any other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in default, but is not
obligated to do so. The Administrative Agent agrees that it will use reasonable efforts (which
will not include the payment of money) either to induce the other Lenders to assume the obligations
of a Lender in default or to obtain another Lender, reasonably satisfactory to Borrower, to replace
such a Lender in default. A defaulting Lender’s right to participate in the administration of the
Loan Documents, including, without limitation, any rights to consent to or direct any action or
inaction of the Administrative Agent or to vote on any matter presented to the Lenders shall be
suspended during the pendency of such Lender’s default.



11.5. Survival of Representations and Warranties. All representations and warranties
contained herein or in any other Loan Document, or in any certificate or other writing delivered by
or on behalf of any one or more of the Parties to any Loan Document, will survive the making of the
Loans hereunder and the execution and delivery of the Notes, and have been or will be relied upon
by the Administrative Agent and each Lender, notwithstanding any investigation made by the
Administrative Agent or any Lender or on their behalf.


 


- 73 -









 





11.6. Notices. Except as otherwise expressly provided in the Loan Documents, all
notices, requests, demands, directions and other communications provided for hereunder or under any
other Loan Document must be in writing and must be mailed, telegraphed, telecopied,
dispatched by commercial courier or delivered to the appropriate party at the address set
forth on the signature pages of this Agreement or other applicable Loan Document or, as to any
party to any Loan Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section. Except as
otherwise expressly provided in any Loan Document, if any notice, request, demand, direction or
other communication required or permitted by any Loan Document is given by mail it will be
effective on the earlier of receipt or the fourth Banking Day after deposit in the United States
mail with first class or airmail postage prepaid; if given by telegraph or cable, when delivered to
the telegraph company with charges prepaid; if given by telecopier, when sent; if dispatched by
commercial courier, on the scheduled delivery date; or if given by personal delivery, when
delivered (provided that if any such communication is received after normal business hours or on a
day that is not a Banking Day, it shall be deemed to have been received on the next Banking Day
following receipt). The Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices purportedly given by or on behalf of Borrower and Lenders shall be entitled to
rely and act upon any notices purportedly given to them by or on behalf of the Administrative
Agent, even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify the
Administrative Agent and each Lender from all losses, costs, expenses and liabilities resulting
from the reliance of such Person on each notice purportedly given by Borrower, except to the extent
of such Person’s gross negligence.



11.7. Execution of Loan Documents. Unless the Administrative Agent otherwise
specifies with respect to any Loan Document, (a) this Agreement and any other Loan Document may be
executed in any number of counterparts and any party hereto or thereto may execute any counterpart,
each of which when executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be, when taken together
will be deemed to be but one and the same instrument and (b) execution of any such counterpart may
be evidenced by a telecopier transmission of the signature of such party. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all the parties hereto or
thereto.




11.8. Binding Effect; Assignment; Replacement.



(a) This Agreement and the other Loan Documents to which the Borrower and Guarantor are a
party are and will be binding upon and inure to the benefit of Borrower and Guarantor, the
Administrative Agent, each of the Lenders, and their respective successors and assigns, except that
Borrower and Guarantor may not assign their rights hereunder or thereunder or any interest herein
or therein without the prior written consent of all the Lenders, and any purported assignment
without such consent shall be null and void. Each Lender represents that it is not acquiring its
Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of such Note must be within the control of
such Lender). Any Lender may at any time pledge its Notes or any other instrument evidencing its
rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release
that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.


 


- 74 -









 





(b) From time to time following the Closing Date, each Lender may assign to one or more
Eligible Assignees all or any portion of its Commitment; provided that (i) such Eligible Assignee,
if not then a Lender or an Affiliate of the assigning Lender, shall require approval by the
Administrative Agent and (if no Event of Default then exists) by Borrower (provided that (i)
neither of such approvals shall be unreasonably withheld or delayed and (ii) Borrower’s approval
may be deemed given under certain circumstances as set forth below), (ii) such assignment shall be
evidenced by a Commitment Assignment and Acceptance, a copy of which, together with any Notes
subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another
Lender or of the entire remaining Commitments of the assigning Lender, the assignment shall not
assign a share of the Commitments that is equivalent to less than $10,000,000, (iv) the assignment
shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations
under this Agreement, and (v) the effective date of any such assignment shall be as specified in
the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking
Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance
unless otherwise agreed by the Administrative Agent. If the Administrative Agent requests in
writing the approval of Borrower to a proposed assignment under the preceding sentence, Borrower
shall respond and either approve or disapprove definitively in writing to the Administrative Agent
within five (5) Banking Days after such written request from the Administrative Agent. If Borrower
does not so respond to the Administrative Agent within such period, the Administrative Agent may
issue a second request in writing to Borrower for such approval, which shall include in the heading
a notice in capital letters that such request is a second request and that Borrower’s approval
shall be deemed to have been given if no response is received by the Administrative Agent within
five (5) Banking Days after such second request. If Borrower fails to so respond to such second
request within such period of five (5) Banking Days, Borrower shall be deemed to have approved the
proposed assignment. Upon the effective date of such Commitment Assignment and Acceptance, the
Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with a
Percentage and Commitment as therein (and herein, if such Eligible Assignee was already a Lender)
set forth and, to the extent of the portion of the Commitments assigned, the assigning Lender shall
be released from its further obligations under this Agreement. Borrower agrees that it shall
execute and deliver to such assignee Lender, Notes evidencing that assignee Lender’s Commitment,
and to the assigning Lender, Notes evidencing the remaining balance of such Lender’s Commitment.



(c) By executing and delivering a Commitment Assignment and Acceptance, the Eligible Assignee
thereunder acknowledges and agrees that: (i) the Administrative Agent and the assigning Lender has
not made any representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the Administrative Agent and the Assigning Lender has not made any
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower and Guarantor or the performance by Borrower and Guarantor of the Obligations; (iii)
it has received a copy of this Agreement and the other Loan Documents, together with copies of the
most recent financial statements delivered pursuant to Section 7.1 and such other documents
and information as it has deemed appropriate to make its own credit analysis and decision to enter
into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance
upon the Administrative Agent or any 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 this Agreement; (v) it appoints
and authorizes the Administrative Agent to take such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform
in accordance with their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.


 


- 75 -









 





(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of
each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the
names and address of each of the Lenders and the Percentage and Commitment amounts held by each
Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be
available during normal business hours for inspection by Borrower or any Lender upon reasonable
prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and
Acceptance executed by any Lender and an Eligible Assignee and the Notes subject to such
assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the
Administrative Agent shall, promptly following the effective date thereof, upon the request of any
party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.
Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the Commitments listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment shall be effective, in each
case unless and until a Commitment Assignment and Acceptance effecting the assignment or transfer
thereof shall have been accepted by the Administrative Agent and recorded in the Register as
provided above. Prior to such recordation, all amounts owed with respect to the applicable
Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of such Commitments.



(e) Each Lender may from time to time grant participations to one or more banks or other
financial institutions (including another Lender but excluding an Employee Plan) in a portion of
its Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation agreement so provides,
for the purposes of Sections 11.11 and 11.22 but only to the extent that the cost
of such benefits to Borrower does not exceed the cost which Borrower would have incurred absent the
participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement, (v) the participation interest shall be expressed as a percentage of the granting
Lender’s Commitment as they then exist and shall not afford such participant any rights or
privileges under the Loan Documents except as provided in clause (iii) above.


 


- 76 -









 





(f) Within thirty (30) days after (i) receipt by Administrative Agent of notice and demand
from any Lender for payment of additional costs as provided in Section 3.4 or Section
3.5(a) or Section 3.5(b), which demand shall not have been revoked, (ii) Borrower is
required to pay any additional amount to any Lender or any Governmental Agency for the
account of any Lender pursuant to Section 3.9(d), (iii) any Lender is a Defaulting
Lender, and the circumstances causing such status shall not have been cured or waived; or (iv) any
failure by any Lender to consent to a requested amendment, waiver or modification to any Loan
Document in which Requisite Lenders have already consented to such amendment, waiver or
modification but the consent of each Lender, or each Lender affected thereby, is required with
respect thereto, (each relevant Lender in the foregoing clauses (i) through (iv) being an “Affected
Lender”) Borrower may, at its option, notify such Affected Lender and the Administrative Agent of
Borrower’s intention to obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”)
for such Lender, which Replacement Lender shall be an Eligible Assignee and, in the event the
Replacement Lender is to replace an Affected Lender described in the preceding clause (iv), such
Replacement Lender consents to the requested amendment, waiver or modification making the replaced
Lender an Affected Lender. In the event Borrower obtains a Replacement Lender following notice of
its intention to do so, the Affected Lender shall sell, at par, and assign all of its Loans and
funding commitments hereunder to such Replacement Lender in accordance with the procedures set
forth in Section 11.8(b); provided, that (A) Borrower shall have, as applicable, reimbursed
such Lender for its increased costs and additional payments for which it is entitled to
reimbursement under any of Section 3.4, Section 3.5(a) or Section 3.5(b),
as applicable, of this Agreement through the date of such sale and assignment, and (B) Borrower
shall pay to Administrative Agent the $3,500 assignment fee in respect of such assignment. In the
event that a replaced Lender does not execute a Commitment Assignment and Acceptance pursuant to
Section 11.8(b) within five (5) Banking Days after receipt by such replaced Lender of
notice of replacement pursuant to this Section 11.8(f) and presentation to such replaced
Lender of a Commitment Assignment and Acceptance evidencing an assignment pursuant to this
Section 11.8(f), such replaced Lender shall be deemed to have consented to the terms of
such Commitment Assignment and Acceptance, and any such Commitment Assignment and Acceptance
executed by Administrative Agent, the Replacement Lender and, to the extent required pursuant to
Section 11.8(b), Borrower, shall be effective for purposes of this Section 11.8(f)
and Section 11.8(b). The removal of any Defaulting Lender pursuant to this Section
11.8(f) or pursuant to Section 11.28(e) shall not preclude Borrower from pursuing all
remedies available to it against such Defaulting Lender for damages arising out of such Defaulting
Lender’s breach hereof.



11.9. Right of Setoff. If an Event of Default has occurred and is continuing, the
Administrative Agent or any Lender (but in each case only with the consent of the Requisite Lenders
and subject to the provisions of Section 11.10) may exercise its rights, if any, under
Article 9 of the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained with it by Borrower
and/or any Property of Borrower in its possession against the Obligations. any and all rights
to require administrative agent or any Lender to exercise its rights or remedies with respect to
any other collateral which secures the loan (if any), prior to exercising its right of setoff with
respect to such deposits, credits, or other property of borrowers, are hereby, knowingly,
voluntarily, and irrevocably waived.


 


- 77 -









 





11.10. Sharing of Setoffs. Each Lender severally agrees that if it, through the
exercise of any right of setoff, banker’s lien or counterclaim against Borrower, or otherwise,
receives payment of the Obligations held by it that is ratably more than any other Lender, or
through any means, receives in payment of the Obligations held by that Lender, then, subject to
applicable Laws: (a) the Lender exercising the right of setoff, banker’s lien or counterclaim or
otherwise
receiving such payment shall purchase, and shall be deemed to have simultaneously purchased,
from each of the other Lenders a participation in the Obligations held by the other Lenders and
shall pay to the other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker’s lien or counterclaim or
receipt of payment shall be in the same proportion that existed prior to the exercise of the right
of setoff, banker’s lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be equitable to ensure that
all of the Lenders share any payment obtained in respect of the Obligations ratably in accordance
with each Lender’s share of the Obligations immediately prior to, and without taking into account,
the payment; provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker’s lien, counterclaim or otherwise is
thereafter recovered from the purchasing Lender by Borrower or any Person claiming through or
succeeding to the rights of Borrower, the purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the recovery, but without interest
(unless the Lender from which such payment is recovered is required to pay interest thereon, in
which case each Lender returning funds to such Lender shall pay its pro rata share of such
interest). Each Lender that purchases a participation in the Obligations pursuant to this
Section 11.10 shall from and after the purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased. Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in an Obligation so purchased
pursuant to this Section 11.10 may exercise any and all rights of setoff, banker’s lien or
counterclaim with respect to the participation as fully as if the Lender were the original owner of
the Obligation purchased.



11.11. Indemnity by Borrower. Borrower agrees to indemnify, save and hold harmless
the Administrative Agent and Co-Lead Arrangers and each Lender and its Affiliates and their
respective directors, officers, agents, attorneys and employees (collectively the “Indemnitees”)
from and against: (a) any and all claims, demands, actions or causes of action (except a claim,
demand, action, or cause of action for any amount excluded from the definition of “Taxes” in
Section 3.9(d)) if the claim, demand, action or cause of action arises out of or relates to
any act or omission (or alleged act or omission) of Borrower, the other members of the Consolidated
Group or any of their officers, directors or stockholders relating to the Commitments, the use or
contemplated use of proceeds of any Loan or any Letter of Credit, or the relationship of Borrower
and the Lenders under this Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or cause of action
described in clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(including reasonable attorneys’ fees and the reasonably allocated costs of attorneys employed by
any Indemnitee and disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. If any claim, demand, action or cause of action is asserted against any
Indemnitee, such Indemnitee shall promptly notify Borrower, but the failure to so promptly notify
Borrower shall not affect Borrower’s obligations under this Section unless such failure materially
prejudices Borrower’s right to participate in the contest of such claim, demand, action or cause of
action, as hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower in
writing) contest the validity,


 


- 78 -









 






applicability
and amount of such claim, demand, action or cause of action and shall permit Borrower to participate in such contest.
Any Indemnitee that proposes to settle or compromise any claim or proceeding for which Borrower may
be liable for payment of indemnity hereunder shall give Borrower written notice of the terms of
such proposed settlement or compromise reasonably in advance of settling or compromising such claim
or proceeding and shall obtain Borrower’s prior written consent (which shall not be unreasonably
withheld or delayed). In connection with any claim, demand, action or cause of action covered by
this Section 11.11 against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the Indemnitees or
attorneys employed by an Indemnitee or a combination of the foregoing) selected by the Indemnitees
and reasonably acceptable to Borrower; provided, that if such legal counsel determines in good
faith that representing all such Indemnitees would or could result in a conflict of interest under
Laws or ethical principles applicable to such legal counsel or that a defense or counterclaim is
available to an Indemnitee that is not available to all such Indemnitees, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit unqualified assertion of
such a defense or counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably acceptable to Borrower,
with all such legal counsel using reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Indemnitees; and further provided that the Administrative Agent (as an Indemnitee)
shall at all times be entitled to representation by separate legal counsel (which may be a law firm
or attorneys employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under this Section 11.11 shall
survive the expiration or termination of this Agreement and all Letters of Credit and the repayment
of all Loans and the payment and performance of all other Obligations owed to the Lenders.




11.12. Nonliability of the Lenders. Borrower acknowledges and agrees that:



(a) Any inspections of any Property of Borrower or Guarantor made by or through the
Administrative Agent or the Lenders are for purposes of administration of the Loan only and
Borrower and Guarantor are not entitled to rely upon the same (whether or not such inspections are
at the expense of Borrower);



(b) By accepting or approving anything required to be observed, performed, fulfilled or given
to the Administrative Agent or the Lenders pursuant to the Loan Documents, neither the
Administrative Agent nor the Lenders shall be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Administrative Agent or the Lenders;



(c) The relationship between Borrower and the Administrative Agent and the Lenders is, and
shall at all times remain, solely that of borrowers and lenders; neither the Administrative Agent
nor the Lenders shall under any circumstance be construed to be partners or joint venturers of
Borrower or any other member of the Consolidated Group, neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or any other member of the Consolidated Group, or to owe any
fiduciary duty to Borrower or any other member of the


 


- 79 -









 






Consolidated Group; neither the
Administrative Agent nor the Lenders undertake or assume any responsibility or duty to Borrower or any other member of the Consolidated Group, to select,
review, inspect, supervise, pass judgment upon or inform Borrower or any other member of the
Consolidated Group, of any matter in connection with their Property or the operations of Borrower
or any other member of the Consolidated Group; Borrower and such other members shall rely entirely
upon their own judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by the Administrative Agent or
the Lenders in connection with such matters is solely for the protection of the Administrative
Agent and the Lenders and neither Borrower nor any other Person is entitled to rely thereon; and



(d) The Administrative Agent and the Lenders shall not be responsible or liable to any Person
for any loss, damage, liability or claim of any kind relating to injury or death to Persons or
damage to Property caused by the actions, inaction or negligence of Borrower and/or any other
member of the Consolidated Group, and Borrower hereby indemnifies and holds the Administrative
Agent and the Lenders harmless on the terms set forth in Section 11.11 from any such loss,
damage, liability or claim.



11.13. No Third Parties Benefited. This Agreement is made for the purpose of defining
and setting forth certain obligations, rights and duties of Borrower, the Administrative Agent and
the Lenders in connection with the Loans and Letters of Credit, and is made for the sole benefit of
Borrower, the Administrative Agent and the Lenders, and the Administrative Agent’s and the Lenders’
successors and assigns. Except as provided in Sections 11.8, 11.11 and
11.22 no other Person shall have any rights of any nature hereunder or by reason hereof.




11.14. Confidentiality.



(a) Confidentiality. Each Lender and the Administrative Agent (each, a “Lender
Party”) hereby agrees for itself only that, except as specifically set forth herein, such Lender
Party (i) shall not participate in or generate any press release or other release of information to
the general public relating to the closing of the Loan without the prior written consent of
Borrower, (ii) shall hold the Confidential Information in strict confidence in accordance with such
Lender Party’s customary procedures to prevent the misuse or disclosure of confidential information
of this nature and in accordance with safe and sound banking practices, (iii) shall use the
Confidential Information solely for the purposes of underwriting the Loan or acquiring an interest
therein, carrying out such Lender Party’s rights or obligations under this Agreement, in connection
with the syndication of the Loan, the enforcement of the Loan Documents, or other internal
examination, supervision or oversight of the transactions contemplated hereby as reasonably
determined by such Lender Party, or as otherwise permitted by the terms of this Section
11.14 (collectively, “Permitted Purposes”), and (iv) shall not disclose the Confidential
Information to any third party, except as expressly authorized in this Agreement or with prior
written consent of Borrower. Each Lender Party shall promptly notify Borrower in the event that it
becomes aware of any loss or unauthorized disclosure of any Confidential Information.


 


- 80 -









 





Each Lender Party shall not have any obligations under this Agreement with respect to a specific
portion of the Confidential Information if such Lender Party can demonstrate that such Confidential
Information (i) was publicly available at the time it was disclosed to such Lender Party, (ii)
became publicly available subsequent to the time it was disclosed to such Lender Party
(except to the extent such public availability was the result of such Lender Party’s disclosure),
(iii) was in or comes into a Lender Party’s possession from a source not known to such Lender Party
(after reasonable inquiry) to be in breach of an obligation of confidentiality owed to Borrower in
making such disclosure to such Lender Party, (iv) was in or comes into Lender Party’s possession
free of any obligation of confidence owed to Borrower at the time it was disclosed to such Lender
Party, or (v) was developed by the employees or agents of the Lender Party without the use of the
Confidential Information.



(b) Disclosures. Any Lender Party or its legal counsel may disclose the Confidential
Information (i) to Borrower, other Lenders, the Administrative Agent or any of their respective
legal counsel, (ii) to its auditors in connection with bank audits or regulatory officials having
jurisdiction over such Lender Party, (iii) to its legal counsel who need to know the Confidential
Information for the purposes of representing or advising the Lender Parties, (iv) to its
consultants, agents and advisors retained in good faith by such Lender Party with a need to know
such information in connection with a Permitted Purpose or to otherwise advise or consult with such
Lender Party, (v) as required by Law or legal process (subject to the terms below), or in
connection with any legal proceeding to which that Lender Party and Guarantor are adverse parties
(and Borrower hereby acknowledges and agrees that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), each Lender is
required to obtain, verify and record information that identifies the Borrower and Guarantor, which
information includes the name and address of the Borrower and Guarantor and other information that
will allow such Lender to identify the Borrower and Guarantor in accordance with the Act), (vi) to
another potential Lender or participant in connection with an assignment or proposed assignment to
that Person of all or part of that Lender Party’s interests hereunder or a participation interest
in its Notes, and (vii) to its directors, officers, employees and Affiliates who need to know the
Confidential Information for purposes of underwriting the Loan or becoming a party to this
Agreement, the syndication of the Loan, the administration, interpretation, performance or exercise
of rights under the Loan Documents, the enforcement of the Loan Documents, or other internal
supervision, examination or oversight of the transactions contemplated hereby as reasonably
determined by such Lender Party, provided that any Person to whom any of the Confidential
Information is disclosed is informed by such Lender Party of the strictly confidential nature of
the Confidential Information, and such Persons described in clauses (b)(iv) and
(vi) shall agree in writing to be bound by confidentiality restrictions at least as
restrictive as those contained herein. Notwithstanding the foregoing, a Lender Party may disclose
Confidential Information to the extent such Lender Party is requested or required by any Law or any
order of any Governmental Agency or self regulatory body or other legal process to make any
disclosure of or about any of the Confidential Information. In such event (except with respect to
banking regulators or auditors), such Lender Party shall, if permitted by Law, promptly notify
Borrower in writing so that Borrower may seek an appropriate protective order or waive compliance
with the provisions of this Agreement (provided that if a protective order or the receipt
of a waiver hereunder has not been obtained, or if prior notice is not possible, and a Lender Party
is, in the opinion of its counsel, compelled to disclose Confidential Information, such Lender
Party may disclose that portion of the Confidential Information which its counsel advises it that
such Lender Party is compelled to disclose, and provided further that in any event, such
Lender Party will not oppose action by Borrower to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential Information.) Each
Lender Party shall be liable (but only to the extent it is finally determined to
have breached the provisions of this Section 11.14(b)) for any actions by such Lender
Party (but not any other Person) which are not in accordance with the provisions of this
Section 11.14(b).


 


- 81 -









 





Notwithstanding anything herein to the contrary, Confidential Information shall not include, and
Administrative Agent and each Lender may disclose to any and all Persons, without limitation of any
kind, any information with respect to the “tax treatment” and “tax structure” (in each case, within
the meaning of Treasury Regulation Section 1.6011 4) of the transactions contemplated hereby and
all materials of any kind (including opinions or other tax analyses) that are provided to the
Administrative Agent or any Lender relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other information, this sentence
shall only apply to such portions of the document or similar item that relate to the tax treatment
or tax structure of the Loans, the Letters of Credit and transactions contemplated hereby.



(c) No Rights in Confidential Information. The Administrative Agent and each Lender
recognizes and agrees that nothing contained in this Section 11.14 shall be construed as
granting any property rights, by license or otherwise, to any Confidential Information (other than
the Agreement or any amendments thereto or any related agreements), or to any invention or any
patent, copyright, trademark, or other intellectual property right that has issued or that may
issue, based on such Confidential Information (other than the Agreement or any amendments thereto
or any related agreements). No Lender Party shall make, have made, use or sell for any purpose any
product or other item using, incorporating or derived from any such Confidential Information;
provided that the foregoing shall not limit or restrict in any way the creation, use or
sale of banking or related services by any Lender Party.



(d) Survival. All Confidential Information provided by or on behalf of Borrower
during the term of this Agreement or any predecessor agreements shall remain confidential
indefinitely and shall continue to receive that level of confidential treatment customarily
provided by commercial banks dealing with confidential information of their borrower customers,
subject, however, to the specific exceptions to confidential treatment provided herein. For a
period of one year after the Termination Date, the affected Lender Party shall continue to make
reasonable inquiry of any third party providing Confidential Information as to whether such third
party is subject to an obligation of confidentiality owed to Borrower or its Subsidiaries and if
such Lender Party obtains knowledge that such third party is violating a confidentiality agreement
with Borrower, such Lender Party shall treat the Confidential Information received from such third
party as strictly confidential in accordance with the provisions of this Section 11.14.
For purposes of this Section 11.14(d), the “Termination Date” shall mean the earlier of the
termination of this Agreement or, with respect to a specific Lender Party, the date such Person no
longer holds an interest in the Loan.



(e) Injunctive Relief. Each Lender Party hereby agrees that breach of this
Section 11.14 will cause Borrower irreparable damage for which recovery of damages would be
inadequate, and that Borrower shall therefore be entitled to obtain timely injunctive relief under
this Agreement, as well as such further relief as may be granted by a court of competent
jurisdiction.


 


- 82 -









 





(f) No Fiduciary Duty. Nothing in this Section shall be construed to create or give
rise to any fiduciary duty on the part of the Administrative Agent or the Lenders to Borrower.



(g) Separate Action. Borrower covenants and agrees not to, and hereby expressly
waives any right to, raise as a defense, affirmative defense, set off, recoupment or otherwise
against any Lender Party any claim arising from or relating to an alleged breach of this
Section 11.14 in any action, claim or proceeding relating to a breach of the Loan Documents
by Borrower or other action to enforce or recover the Obligations, and covenant and agree that any
claim against a Lender Party arising from or relating to an alleged breach of this Section
11.14 by a Lender Party shall only be asserted as an affirmative claim in a separate action
against the applicable Lender Party.



11.15. Further Assurances. Borrower shall, at its expense and without expense to the
Lenders or the Administrative Agent, do, execute and deliver such further acts and documents as the
Requisite Lenders or the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Lenders or the Administrative Agent of the rights hereby created or
intended now or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.



11.16. Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof. In the event of any conflict
between the provisions of this Agreement and those of any other Loan Document, the provisions of
this Agreement shall control and govern; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



11.17. Governing Law. Except to the extent otherwise provided therein, each Loan
Document shall be governed by, and construed and enforced in accordance with, the Laws of the State
of New York without any regard to conflicts of law principles that would result in the application
of any Law other than the Laws of the State of New York.



11.18. Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable or invalid as to any party or in any jurisdiction shall, as to that
party or jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining
provisions or the operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be
severable.



11.19. Headings. Article and Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of this Agreement or the
other Loan Documents for any other purpose.



11.20. Time of the Essence. Time is of the essence of the Loan Documents.


 


- 83 -









 





11.21. Delivery of Tax Forms. Each Lender that is incorporated or otherwise organized
under the Laws of a jurisdiction other than the United States of America or any State thereof or
the District of Columbia shall deliver to Borrower (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two duly completed copies, signed
by a Responsible Official, of either Form W 8BEN (relating to such Lender and entitling it to a
complete exemption from withholding on all payments to be made to such Lender by Borrower pursuant
to this Agreement) or Form W 8ECI (relating to all payments to be made to such Lender by Borrower
pursuant to this Agreement), or W-8IMY, as applicable, of the United States of America Internal
Revenue Service or such other evidence satisfactory to Borrower and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to such Lender. If a
Lender is claiming a “portfolio interest exemption,” such Lender shall, in addition to Form W 8BEN,
provide a certificate signed by a Responsible Official to the effect that (i) such Lender is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) such Lender is not a 10%
shareholder of Borrower, and (iii) such Lender is not related to Borrower within the meaning of
Section 881(c)(3)(C) of the Code. Thereafter and from time to time, including before the
expiration of any previously delivered form, each such Lender shall (a) promptly submit to Borrower
(with a copy to the Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by the relevant United
States of America taxing authorities) as may then be required under then current United States of
America Laws and regulations to avoid, or such evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from, United States of America withholding taxes in
respect of all payments to be made to such Lender by Borrower pursuant to this Agreement and (b)
take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re designation of its LIBOR Lending
Office, if any) to avoid any applicable deduction or withholding for taxes from amounts payable to
such Lender. In the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial institution that
is incorporated or otherwise organized under the Laws of a jurisdiction other than the United
States of America, any State thereof or the District of Columbia, then, upon request made by
Borrower or the Administrative Agent to the Lender which granted such participation, such Lender
shall cause such participant financial institution to deliver the same documents and information to
Borrower and the Administrative Agent as would be required under this Section if such financial
institution were a Lender. Each Lender that is a United States of America Person shall, upon the
reasonable request of Borrower, deliver Form W-9 on or before the Closing Date (or on or before
accepting an assignment or receiving a participation pursuant to Section 11.8, if
applicable) and before the expiration of a previously delivered form.



11.22. Hazardous Material Indemnity. Borrower hereby agrees to indemnify, hold
harmless and defend (by counsel reasonably satisfactory to the Administrative Agent) the
Administrative Agent and each of the Lenders and their Affiliates and their respective directors,
officers, employees, agents, successors and assigns from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and
orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but not limited to reasonable attorneys’ fees
and the reasonably allocated costs of attorneys employed by the Administrative Agent or any Lender,
and expenses to the extent that the


 


- 84 -









 






defense
of any such action has not been assumed by Borrower), arising directly or indirectly out of (i) the presence on, in, under or about
any Projects of any Hazardous Materials, or any releases or discharges of any Hazardous Materials
on, under or from any Projects and (ii) any activity carried on or undertaken on or off any
Projects by Borrower or Guarantor or any of their predecessors in title, whether prior to or during
the term of this Agreement, and whether by Borrower or any predecessor in title or any employees,
agents, contractors or subcontractors thereof, or any third Persons at any time occupying or
present on any Project, in connection with the handling, treatment, removal, storage,
decontamination, clean up, transport or disposal of any Hazardous Materials at any time located or
present on, in, under or about any Project. The foregoing indemnity shall further apply to any
residual contamination on, in, under or about any Project, or affecting any natural resources, and
to any contamination of any Project or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities were or will be undertaken in accordance with applicable Laws, but
the foregoing indemnity shall not apply to Hazardous Materials on any Project, the presence of
which is caused by the Administrative Agent or the Lenders. Borrower hereby acknowledges and
agrees that, notwithstanding any other provision of this Agreement or any of the other Loan
Documents to the contrary, the obligations of Borrower under this Section (and under Sections
4.17 and 5.10) shall be unlimited corporate obligations of Borrower and shall not be
secured by any Lien on any Project. Any obligation or liability of Borrower to any Indemnitee
under this Section 11.22 shall survive the expiration or termination of this Agreement and
all Letters of Credit and the repayment of all Loans and the payment and performance of all other
Obligations owed to the Lenders.




11.23. [Intentionally Omitted].



11.24 Consent to Jurisdiction. The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in the Supreme Court of the State of New York sitting in New
York County or the United States District Court of the Southern District of New York, or any
appellate court from any thereof. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.


 


- 85 -









 





11.24. Waiver Of Right To Trial By Jury. Each party to this
agreement hereby expressly waives any right to trial by jury of any claim, demand, action or cause
of action arising under any loan document or in any way connected with or related or
incidental to the dealings of the parties hereto or any of them with respect to any loan document,
or the transactions related thereto, in each case whether now existing or hereafter arising, and
whether sounding in contract or tort or otherwise; and each party hereby agrees and consents that
any such claim, demand, action or cause of action shall be decided by court trial without a jury,
and that any party to this agreement may file an original counterpart or a copy of this section
with any court as written evidence of the consent of the signatories hereto to the waiver of their
right to trial by jury.



11.25. Purported Oral Amendments. Borrower expressly
acknowledges that this agreement and the other loan documents may only be amended or modified, or
the provisions hereof or thereof waived or supplemented, by an instrument in writing that complies
with section 12.1. Borrower agrees that it will not rely on any course of dealing, course
of performance, or oral or written statements by any representative of the administrative agent or
any Lender that does not comply with section 12.1 to effect an amendment, modification,
waiver or supplement to this agreement or the other loan documents.



11.26. Replacement of Notes. Upon receipt of evidence reasonably satisfactory to
Borrower of the loss, theft, destruction or mutilation of any Note, and in the case of any such
loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory to
Borrower or, in the case of any such mutilation, upon surrender and cancellation of the applicable
Note, Borrower will execute and deliver, in lieu thereof, a replacement Note, identical in form and
substance to the applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall be deemed to refer
to such replacement Note.



11.27. Defaulting Lenders. In the event that any Lender becomes a Defaulting Lender,
then, in addition to any rights and remedies that may be available to Borrower or the other Lenders
and the Administrative Agent (such other Lenders and the Administrative Agent being called “Non
Defaulting Lenders”) at law or in equity:



(a) The Defaulting Lender’s rights to participate in the administration of the Loan and the
Loan Documents, including any right to vote upon, approve, disapprove, consent to or direct any
action of the Administrative Agent (other than amendments to the Loan Documents directly affecting
the Defaulting Lender’s Commitment or forgive any portion of the Outstanding Facility Amount held
by such Defaulting Lender), shall be suspended and such rights shall not be reinstated unless and
until such Lender ceases to be a Defaulting Lender (and all decisions, except the decision to
remove the Administrative Agent, which are to be based on a vote of the Requisite Lenders or all
Lenders shall be resolved based upon a decision or determination made by the required percentage of
the Non-Defaulting Lenders); provided, however, that if the Administrative Agent is a Defaulting
Lender, the Administrative Agent shall continue to have all rights provided for in this Loan
Agreement, as the Administrative Agent only, with respect to the administration of the Loan unless
it is removed and replaced as the Administrative Agent as provided in Section 10.8.


 


- 86 -









 





(b) Any or all of the Non-Defaulting Lenders shall be entitled (but shall not be obligated)
to: (i) fund the aggregate amount that the Defaulting Lender has failed to fund or pay to the
Administrative Agent (such amount being called the “Defaulted Amount”); and (ii) collect interest
at the Default Rate on the Defaulted Amount (after crediting all interest actually paid by Borrower
on the Defaulted Amount from time to time), either directly from the Defaulting Lender or from
amounts otherwise payable to the Defaulting Lender, for the period from the date on which the
Defaulted Amount was funded by the Non-Defaulting Lenders until the date on which payment is made.
If the Administrative Agent has funded the Defaulted Amount, the Administrative Agent shall be
entitled to collect interest at the Default Rate from the Defaulting Lender on the Defaulted Amount
as set forth above, as if the Administrative Agent were a Non-Defaulting Lender that had elected to
fund the Defaulted Amount.



(c) In the event the Defaulted Amount is funded by any Non-Defaulting Lenders or the
Administrative Agent pursuant to Section 11.28(b) above, the Defaulting Lender’s interest
in the Loans, the Loan Documents and proceeds thereof shall be subordinated to any Defaulted Amount
funded by any Non-Defaulting Lenders or the Administrative Agent pursuant to Section
11.28(b) above, plus all interest which may be due in accordance with Section 11.28(b)
above (to be applied pari passu among the Non-Defaulting Lenders (including the Administrative
Agent, unless the Administrative Agent is the Defaulting Lender) funding the Defaulted Amount),
without necessity for executing any further documents; provided that such Defaulting Lender’s
interest in the Loan, the Loan Documents and the proceeds thereof shall no longer be so
subordinated if the Defaulted Amount funded by the Non-Defaulting Lenders or the Administrative
Agent (and all interest which has accrued pursuant to Section 11.28(b) above) shall be
repaid in full.



(d) If, following the payment in full of all amounts due pursuant to Section 11.28(c)
above to the Non-Defaulting Lenders (including the Administrative Agent, unless the Administrative
Agent is the Defaulting Lender) which have funded all or any portion of any Defaulted Amount, there
remains any unfunded Defaulted Amount which has not been funded by the Non-Defaulting Lenders, the
Administrative Agent or the Defaulting Lender (“Unfunded Defaulted Amount”), then a portion of the
Defaulting Lender’s interest in the Loan, the Loan Documents and the proceeds thereof equal to the
amount of the Unfunded Defaulted Amount (together with interest thereon at the rate applicable to
the Defaulted Amount from time to time pursuant to the Loan Documents) shall be subordinated to the
interests of the Non-Defaulting Lenders (including the Administrative Agent, unless the
Administrative Agent is the Defaulting Lender) unless and until such Unfunded Defaulted Amount is
funded either by one or more Non -Defaulting Lenders, the Administrative Agent or the Defaulting
Lender.



(e) Subject to the provisions of Section 11.8 and the definition of Eligible Assignee,
each Non-Defaulting Lender will have the right, but not the obligation, in its sole discretion, to
acquire at par all or a proportionate share (based on the ratio of its Commitments to the aggregate
amount of the Commitments of all of the Non-Defaulting Lenders that elect to acquire a share of the
Defaulting Lender’s Commitment) of the Defaulting Lender’s Commitment, including without limitation
its proportionate share in the outstanding principal balance of the Loan, and all rights and
interests of the Defaulting Lender under this Agreement and the other Loan Documents.


 


- 87 -









 





(f) Nothing herein contained shall be deemed or construed to waive, diminish, limit, prevent
or estop the Administrative Agent, Borrower or any Lender from exercising or enforcing any rights
or remedies which may be available at law or in equity as a result of or in connection with any
default under this Agreement by a Lender (including the right to bring suit against the Defaulting
Lender to recover the Defaulted Amount and interest thereon at the rate provided in this
Section 11.28).



ARTICLE 12




AMENDMENTS; CONSENTS




12.1. Amendments; Consents. No amendment, modification, supplement, extension,
termination or waiver of any provision of this Agreement or any other Loan Document, no approval or
consent thereunder, and no consent to any departure by Borrower or Guarantor therefrom, may in any
event be effective unless in writing signed by the Requisite Lenders (and, in the case of any
amendment, modification or supplement of or to any Loan Document to which Borrower or Guarantor is
a party, signed by each such party, and, in the case of any amendment, modification or supplement
to Section 3.2 or Article 10, signed by the Administrative Agent), and then only in
the specific instance and for the specific purpose given; and, without the approval in writing of
all the Lenders, no amendment, modification, supplement, termination, waiver or consent may be
effective:



(a) To amend, modify, forgive, reduce or waive the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on, any Note, or the amount of the Aggregate
Commitment, or the Percentage of any Lender (except with respect to increases in the Aggregate
Commitment up to $1,250,000,000, as specifically provided for herein, provided that in no event may
a Lender’s Commitment be increased without such Lender’s consent) or the amount of any Facility Fee
payable to any Lender, or any other fee or amount payable to any Lender under the Loan Documents or
to waive an Event of Default consisting of the failure of Borrower to pay when due principal,
interest or any fee;



(b) To postpone any date fixed for any payment of principal of, prepayment of principal of or
any installment of interest on, any Note or any installment of any fee, or to extend the term of
the Commitments (other than pursuant to Section 2.10);




(c) To amend the provisions of the definition of “Requisite Lenders” or “Maturity Date”;




(d) To amend or waive this Section 12.1;



(e) To amend any provision of this Agreement that expressly requires the consent or approval
of all of the Lenders to require a lesser number of Lenders to approve such action;




(f) To release Borrower or Guarantor from liability under the Loan Documents; or



(g) To change the manner or order of priority of distribution of any payments to the Lenders
or the Administrative Agent.


 


- 88 -









 





No amendment, modification, supplement, extension, termination or waiver or consent may be
effective to require a Lender to fund more than its Percentage of a Request for an Advance, a Swing
Loan or a Letter of Credit without the approval of any Lender affected thereby. There shall be no
amendment, modification or waiver of any provisions in the Loan Documents with respect to Swing
Loans without the consent of the Swing Loan Lender and there shall be no amendment, modification or
waiver of any provisions in the Loan Documents with respect to Letters of Credit without the
consent of the Administrative Agent. If the Administrative Agent requests in writing the consent
or approval of a Lender, such Lender shall respond and either approve or disapprove definitively in
writing to the Administrative Agent within ten (10) Banking Days (or sooner if such notice
specifies a shorter period for responses based on Administrative Agent’s good faith determination
that circumstances exist warranting its request for an earlier response) after such written request
from the Administrative Agent. If the Lender does not so respond to the Administrative Agent
within such period, the Administrative Agent may issue a second request in writing to such Lender
for such consent, which shall include in the heading a notice in capital letters that such request
is a second request and that such Lender’s consent shall be deemed to have been given if no
response is received by the Administrative Agent within five (5) Banking Days after such second
request. If that Lender fails to so respond to such second request within such period of five (5)
Banking Days, such Lender shall be deemed to have approved the request, unless the consent or
approval of all Lenders is required for the requested action as provided under this Section
12.1, in which event failure to so respond to such second request shall not be deemed to be an
approval of such request. Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section 12.1 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.



[Signature pages follow.]



 


- 89 -









 





IN WITNESS WHEREOF, the parties hereto have caused this Unsecured Credit Agreement to be duly
executed as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BioMed Realty Trust, Inc., its sole	 	 
	 	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Greg Lubushkin
 

	 	 
	 	 	 	 	Print Name: Greg Lubushkin	 	 
	 	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BioMed Realty, L.P.	 	 
	 	 	17190 Bernardo Center Drive 	 	 
	 	 	San Diego, CA 92128	 	 
	 	 	Attn: Vice President, Real Estate Counsel	 	 
	 	 	Telephone: (858) 207-5850	 	 
	 	 	Facsimile: (858) 485-9843	 	 






Signature Page to Agreement



 


S-1









 





	 	 	 	 	 	 	 
	 	 	ADMINISTRATIVE AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael P. Szuba
 

	 	 
	 	 	Print Name: Michael P. Szuba	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	KeyBank — Real Estate Capital	 	 
	 	 	127 Public Square, 8th Floor 	 	 
	 	 	Mail Code: OH-01-27-0839	 	 
	 	 	Cleveland, OH 44114	 	 
	 	 	Telephone: (216) 689-5984	 	 
	 	 	Facsimile: (216) 689-4997	 	 
	 	 	Attention: Michael P. Szuba	 	 
	 
	 	 	LENDERS:	 	 
	 
	 	 	 	 	 	 
	Commitment: $86,500,000	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	individually and as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael P. Szuba
 

	 	 
	 	 	Print Name: Michael P. Szuba	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	KeyBank — Real Estate Capital	 	 
	 	 	127 Public Square, 8th Floor 	 	 
	 	 	Mail Code: OH-01-27-0839	 	 
	 	 	Cleveland, OH 44114	 	 
	 	 	Phone: (216) 689-5989	 	 
	 	 	Facsimile: (216) 689-4997	 	 
	 	 	Attention: Michael P. Szuba	 	 






Signature Page to Agreement



 


S-2









 





	 	 	 	 	 	 	 
	Commitment: $86,500,000	 	WELLS FARGO BANK, N.A., individually and	 	 
	 	 	as Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dale Northup
 

	 	 
	 	 	Print Name: Dale Northup	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Wells Fargo Bank, N.A.	 	 
	 	 	401 B Street, Suite 1100 	 	 
	 	 	San Diego, CA 92101	 	 
	 	 	Telephone: (619) 699-3025	 	 
	 	 	Facsimile: (619) 699-3105	 	 
	 	 	Attention: Dale Northup, Vice President	 	 






Signature Page to Agreement



 


S-3









 





	 	 	 	 	 	 	 
	Commitment: $60,000,000	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	a national banking association, individually and as	 	 
	 	 	Documentation Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Paris
 

	 	 
	 	 	Name: Michael Paris	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. Bank National Association	 	 
	 	 	4747 Executive Drive, 3rd Floor 	 	 
	 	 	San Diego, CA 92121	 	 
	 	 	Telephone: (858) 334-0703	 	 
	 	 	Facsimile: (858) 334-_____	 	 
	 	 	Attention: Michael Parris	 	 






Signature Page to Agreement



 


S-4









 





	 	 	 	 	 	 	 
	Commitment: $60,000,000	 	RAYMOND JAMES BANK, FSB	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Alexander L. Rody
 

	 	 
	 	 	Print Name: Alexander L. Rody	 	 
	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	710 Carillon Parkway 	 	 
	 	 	St. Petersburg, FL 33716	 	 
	 	 	Telephone: (727) 567-4196	 	 
	 	 	Facsimile: (727) 567-8830	 	 
	 	 	Attention: Thomas G. Scott	 	 






Signature Page to Agreement



 


S-5









 





	 	 	 	 	 	 	 
	Commitment: $50,000,000	 	UBS LOAN FINANCE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa
 

	 	 
	 	 	Print Name: Irja R. Otsa	 	 
	 	 	Title: Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mary E. Evans
 

	 	 
	 	 	Print Name: Mary E. Evans	 	 
	 	 	Title: Associate Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	677 Washington Boulevard 	 	 
	 	 	Stamford, CT 06901	 	 
	 	 	Telephone: (203) 719-3167	 	 
	 	 	Facsimile: (203) 719-3888	 	 
	 	 	Attention: Denise Bushee	 	 






Signature Page to Agreement



 


S-6









 





	 	 	 	 	 	 	 
	Commitment: $50,000,000	 	MORGAN STANLEY BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Melissa James
 

	 	 
	 	 	Print Name: Melissa James	 	 
	 	 	Title: Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	One Utah Center	 	 
	 	 	201 South Main Street, 5th Floor 	 	 
	 	 	Salt Lake City, UT 84111	 	 
	 	 	Telephone: (801) 236-3655	 	 
	 	 	Facsimile: (718) 233-0967	 	 
	 	 	Attention: Carrie D. Johnson	 	 






Signature Page to Agreement



 


S-7









 





	 	 	 	 	 	 	 
	Commitment: $50,000,000	 	DEUTSCHE BANK TRUST COMPANY	 	 
	 	 	AMERICAS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J.T. Johnston Coe
 

	 	 
	 	 	Print Name: J.T. Johnston Coe	 	 
	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ George R. Reynolds
 

	 	 
	 	 	Print Name: George R. Reynolds	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Deutsche Bank Securities, Inc.	 	 
	 	 	200 Crescent Court, Suite 550 	 	 
	 	 	Dallas, TX 75201	 	 
	 	 	Telephone: (214) 740-7904	 	 
	 	 	Facsimile: (214) 740-7910	 	 
	 	 	Attention: Linda Davis, Director	 	 






Signature Page to Agreement



 


S-8









 





	 	 	 	 	 	 	 
	Commitment: $43,000,000	 	THE SUMITOMO MITSUI BANKING	 	 
	 	 	CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William G. Karl
 

	 	 
	 	 	Print Name: William G. Karl	 	 
	 	 	Title: General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	601 South Figueroa Street, Suite 1800 	 	 
	 	 	Los Angeles, CA 90017	 	 
	 	 	Telephone: (213) 452-7800	 	 
	 	 	Facsimile: (213) 623-6832	 	 
	 	 	Attention: William G. Karl, General Manager	 	 






Signature Page to Agreement



 


S-9









 





	 	 	 	 	 	 	 
	Commitment: $43,000,000	 	RBS CITIZENS, N.A. dba CHARTER ONE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michelle L. Lyles
 

	 	 
	 	 	Print Name: Michelle L. Lyles	 	 
	 	 	Title: Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	1215 Superior Avenue 	 	 
	 	 	6th Floor M/C: OHS-675 	 	 
	 	 	Cleveland, Ohio 44114	 	 
	 	 	Telephone: 216.277.0051	 	 
	 	 	Facsimile: 216.277.4600	 	 
	 	 	Attention: Erin L. Mahon	 	 






Signature Page to Agreement



 


S-10









 





	 	 	 	 	 	 	 
	Commitment: $43,000,000	 	REGIONS BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cathy Baillis
 

	 	 
	 	 	Print Name: Cathy Baillis	 	 
	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	3050 Peachtree Road NW, Suite 400 	 	 
	 	 	Atlanta, GA 30305	 	 
	 	 	Telephone: (404) 995-7648	 	 
	 	 	Facsimile: (404) 279-7475	 	 
	 	 	Attention: Paul Burgan, Vice President	 	 






Signature Page to Agreement



 


S-11









 





	 	 	 	 	 	 	 
	Commitment: $43,000,000	 	PNC BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tyler Lowry
 

	 	 
	 	 	Print Name: Tyler Lowry	 	 
	 	 	Title: Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	249 Fifth Avenue 	 	 
	 	 	One PNC Plaza, P1-POPP-19-3	 	 
	 	 	Pittsburgh, PA 15222	 	 
	 	 	Telephone: (412) 768-1821	 	 
	 	 	Facsimile: (412) 762-6500	 	 
	 	 	Attention: Tyler Lowry, Assistant Vice President	 	 






Signature Page to Agreement



 


S-12









 





	 	 	 	 	 	 	 
	Commitment: $30,000,000	 	COMERICA BANK	 	 
	 
	 

	 	By:
	 	/s/ Charles Weddell
 

	 	 
	 	 	Print Name: Charles Weddell	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	3551 Hamlin Road, MC2390 	 	 
	 	 	Auburn Hills, MI 48326	 	 
	 	 	Telephone: (248) 371-6283	 	 
	 	 	Facsimile: (248) 371-7920	 	 
	 	 	Attention: Charles Weddell, Vice President	 	 






Signature Page to Agreement



 


S-13









 





	 	 	 	 	 	 	 
	Commitment: $30,000,000	 	TD BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Yesue
 

	 	 
	 	 	Print Name: David Yesue	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Commercial Real Estate Lending	 	 
	 	 	TD Bank, N.A.	 	 
	 	 	370 Main Street, 2nd Floor 	 	 
	 	 	Worcester, MA 01608	 	 
	 	 	Telephone: (508) 368-6921	 	 
	 	 	Facsimile: (508) 368-6522	 	 
	 	 	Attention: David Yesue, Vice President	 	 






Signature Page to Agreement



 


S-14









 





	 	 	 	 	 	 	 
	Commitment: $25,000,000	 	SOVEREIGN BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Peter A. Olivier
 

	 	 
	 	 	Print Name: Peter A. Olivier	 	 
	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	75 State Street 	 	 
	 	 	Boston, MA 02109	 	 
	 	 	Telephone: (617) 346-7314	 	 
	 	 	Facsimile: (617) 757-5852	 	 
	 	 	Attention: Amit Shah, Credit Officer	 	 






Signature Page to Agreement



 


S-15









 





	 	 	 	 	 	 	 
	Commitment: $10,000,000	 	THE BANK OF EAST ASIA, LIMITED, LOS	 	 
	 	 	ANGELES BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chong Tan
 

	 	 
	 	 	Print Name: Chong Tan	 	 
	 	 	Title: Vice President and Credit Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Loh
 

	 	 
	 	 	Print Name: David Loh	 	 
	 	 	Title: Chief Lending Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	388 East Valley Boulevard, Suite 218 	 	 
	 	 	Alhambra, CA 91801	 	 
	 	 	Telephone: (626) 656-8838	 	 
	 	 	Facsimile: (626) 656-8833	 	 
	 	 	Attention: Jonathan Kuo	 	 






Signature Page to Agreement



 


S-16









 





	 	 	 	 	 	 	 
	Commitment: $10,000,000	 	BANK HAPOALIM BM	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles McLaughlin
 

	 	 
	 	 	Print Name: Charles McLaughlin	 	 
	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James Surless
 

	 	 
	 	 	Print Name: James Surless	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	1177 Avenue of the Americas 	 	 
	 	 	New York, NY 10036	 	 
	 	 	Telephone: (212) 782-2342	 	 
	 	 	Facsimile: (212) 782-2382	 	 
	 	 	Attention: Charles McLaughlin,	 	 
	 	 	Senior Vice President	 	 






Signature Page to Agreement



 


S-17









 





	 	 	 	 	 	 	 
	Commitment: $10,000,000	 	MEGA INTERNATIONAL COMMERCIAL	 	 
	 	 	BANK CO., LTD., NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Priscilla Hsing
 

	 	 
	 	 	Printed Name:  Priscilla Hsing	 	 
	 	 	Title: VP & DGM	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	65 Liberty Street 	 	 
	 	 	New York, NY 10005	 	 
	 	 	Telephone: (212) 815-9107	 	 
	 	 	Facsimile: (212) 766-5006	 	 
	 	 	Attention: Ifen Lee	 	 






Signature Page to Agreement



 


S-18









 





	 	 	 	 	 	 	 
	Commitment: $10,000,000	 	LAND BANK OF TAIWAN, NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Henry Leu
 

	 	 
	 	 	Print Name: Henry Leu	 	 
	 	 	Title: Senior Vice President and General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	100 Wall Street, 14th Floor 	 	 
	 	 	New York, NY 10005	 	 
	 	 	Telephone: (917) 542-0232	 	 
	 	 	Facsimile: (917) 542-0288	 	 
	 	 	Attention: Mitch Chang, Manager	 	 






Signature Page to Agreement



 


S-19









 





	 	 	 	 	 	 	 
	Commitment: $10,000,000	 	CHANG HWA COMMERCIAL BANK, LTD.,	 	 
	 	 	NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Eric Y.S. Tsai
 

	 	 
	 	 	Print Name: Eric Y.S. Tsai	 	 
	 	 	Title: Vice President and General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	685 Third Avenue, 29th Floor 	 	 
	 	 	New York, NY 10017	 	 
	 	 	Telephone: (212) 651-9770 Ext. 24	 	 
	 	 	Facsimile: (212) 651-9785	 	 
	 	 	Attention: Lauren Chen, Loan Officer	 	 






Signature Page to Agreement





 


S-20











 




EXHIBIT A



FORM OF ASSIGNMENT AND ACCEPTANCE




This ASSIGNMENT AND ACCEPTANCE AGREEMENT (the “Assignment and Acceptance”) dated as of
                    , 201
 _____, is made by and between                      (“Assignor”) and
                                         (“Assignee”).



RECITALS




WHEREAS, Assignor is party to that certain Unsecured Credit Agreement dated as of July 14,
2011 (as it may have been or hereafter may be amended, amended and restated, modified, supplemented
or renewed from time to time, the “Credit Agreement”), among BioMed Realty, L.P.
(“Borrower”), the several financial institutions from time to time party thereto
(collectively, including Assignor, “Lenders”), and KeyBank National Association, as
administrative agent for Lenders (in such capacity, “Agent”). Capitalized terms used in
this Assignment and Acceptance and not defined herein have the meanings given to them in the Credit
Agreement;



WHEREAS, as provided under the Credit Agreement, Assignor has committed to making advances to
fund Loans to Borrower in an aggregate principal amount, when combined with Assignor’s Percentage
of any Letter of Credit Exposure and Swing Loans, not to exceed $                     outstanding at any
one time (the “Line Commitment”). Assignor also has the option, but not the commitment, to
make Competitive Bid Advances to Borrower as provided under the Credit Agreement.



WHEREAS, as of the Effective Date (defined below), the aggregate outstanding principal amount
of Advances owing by Borrower to Assignor equals $                     of which $                     are Line
Advances and $                     are Competitive Bid Advances; and



WHEREAS, Assignor wishes to assign to Assignee [a portion] [all] of the rights and obligations
of Assignor under the Credit Agreement in respect of its Line Commitment, in an aggregate amount
equal to $                     (the “Assigned Amount”) on the terms and subject to the conditions
set forth herein, and Assignee wishes to accept assignment of such rights and to assume such
obligations from Assignor on such terms and subject to such conditions.



NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:




1. Assignment and Acceptance.



1.1 Subject to the terms and conditions of this Assignment and Acceptance, (i) Assignor hereby
sells, transfers and assigns to Assignee, and (ii) Assignee hereby purchases, assumes and
undertakes from Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance)
 _____% (the “Assignee’s Percentage Share”) of the
Line Commitment of Assignor [together with Assignor’s rights to make Competitive Bid Advances], and
(B) all related rights, benefits, obligations, liabilities and
indemnities of Assignor under and in connection with the Credit Agreement and the other Loan
Documents.


 


EXHIBIT A-1









 





1.2 With effect on and after the Effective Date (as defined in Section 5 hereof),
Assignee shall be a party to the Credit Agreement and shall succeed to all of the rights and be
obligated to perform all of the obligations of a Lender under the Credit Agreement, including the
requirements concerning the payment of indemnification, with a Line Commitment in an amount equal
to the Assigned Amount (plus the amount of Assignee’s existing Line Commitment, if any). Assignee
agrees that it will perform in accordance with its terms all of the obligations that it is required
to perform as a Lender under the Credit Agreement. It is the intent of the parties hereto that the
Line Commitment of Assignor shall, as of the Effective Date, be reduced by an amount equal to the
Assigned Amount and Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by Assignee;
provided, however, that Assignor shall not relinquish its rights to be indemnified by
Borrower under Sections 11.11 and 11.22 of the Credit Agreement or any other similar
indemnity provisions of the Loan Documents to the extent such rights relate to the time prior to
the Effective Date.



1.3 After giving effect to the assignment and assumption set forth herein, on the Effective
Date Assignor’s Line Commitment will be $                    .



1.4 After giving effect to the assignment and assumption set forth herein, on the Effective
Date Assignee’s Line Commitment will be $                    .




2. Payments.



2.1 As consideration for the sale, assignment and transfer contemplated in Section 1
hereof, Assignee shall pay to Assignor on the Effective Date in immediately available funds an
amount [as agreed to between the Assignor and Assignee] [equal to $                    , representing
Assignee’s Percentage of the principal amount of all outstanding Advances under the Loan
Documents].



2.2 Assignor further agrees to pay to Agent an assignment fee in the amount specified in
Section 11.8(d) of the Credit Agreement.



2.3 Assignee shall be entitled to Assignee’s Percentage of any Facility Fees, any Letter of
Credit Fees and any extension fees accruing on Assignee’s Line Commitment from and after the
Effective Date, together with the following portions of the commitment fees and any other fees
payable to Assignor:




[None, unless specified].



3. Re-Allocation of Payments. Any interest, fees (except as may otherwise be
specified in Section 2.3 above) and other payments accrued to the Effective Date with
respect to the Line Commitment or the outstanding Advances of Assignor shall be for the account of
Assignor. Any interest, fees (except as may otherwise be specified in Section 2.3 above)
and other payments accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of Assignee. Each of Assignor and Assignee agrees that it will hold in
trust for the other party any interest, fees and other amounts that it may receive to which the
other party is entitled pursuant to the preceding sentence and pay to the other party any such
amounts that it may receive promptly upon receipt.


 


EXHIBIT A-2









 





4. Independent Credit Decision. Assignee (a) acknowledges that it has received a copy
of the Credit Agreement and the Exhibits thereto, together with copies of the most recent financial
statements referred to in Section 7.1 of the Credit Agreement, and such other documents and
information as it has deemed appropriate to make its own credit and legal analysis and decision to
enter into this Assignment and Acceptance; and (b) agrees that it will, independently and without
reliance upon Assignor, Agent or any other Lender and based on such documents and information as it
deems appropriate at the time, continue to make its own credit and legal decisions in taking or not
taking action under the Credit Agreement.




5. Effective Date; Notices.



5.1 As between Assignor and Assignee, the effective date for this Assignment and Acceptance
shall be                     , 201
 _____ 
(the “Effective Date”); provided that the following
conditions precedent have been satisfied on or before the Effective Date:




(a) this Assignment and Acceptance shall be executed and delivered by Assignor and
Assignee;




(b) the consent of Agent and Parent required for an effective assignment of the
Assigned Amount by Assignor to Assignee under Section 11.8(b) of the Credit
Agreement shall have been duly obtained and shall be in full force and effect as of the
Effective Date;




(c) Assignee shall pay to Assignor all amounts due to Assignor under this Assignment
and Acceptance; and




(d) the assignment fee referred to in Section 2.2 hereof shall have been paid
to Agent.



5.2 Promptly following the execution of this Assignment and Acceptance, Assignor shall deliver
to Borrower and Agent for acknowledgment by Agent, a Notice of Assignment substantially in the form
attached hereto as Schedule 1.




6. [Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]



6.1 Assignee hereby appoints and authorizes Assignor to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated to Agent by the
Lenders pursuant to the terms of the Credit Agreement.



6.2 Assignee shall assume no duties or obligations held by Assignor in its capacity as Agent
under the Credit Agreement.]



7. Withholding Tax. Assignee (a) represents and warrants to Lenders, Agent and
Borrower that under applicable Law and treaties no tax will be required to be withheld by Lenders
with respect to any payments to be made to Assignee hereunder, (b) agrees to comply with (if it is
organized under the Laws of any jurisdiction other than the United States or any
state thereof) Section 11.21 of the Credit Agreement prior to the time that Agent or
Borrower is required to make any payment of principal, interest or fees hereunder or under the Loan
Documents to Assignee.


 


EXHIBIT A-3









 






8. Representations and Warranties.



8.1 Assignor represents and warrants that (i) it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any lien or
other adverse claim; (ii) it is duly organized and existing and it has the full power and authority
to take, and has taken, all action necessary to execute and deliver this Assignment and Acceptance
and any other documents required or permitted to be executed or delivered by it in connection with
this Assignment and Acceptance and to fulfill its obligations hereunder; (iii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assignment and Acceptance, and
apart from any agreements or undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any Person is required of it for such execution, delivery
or performance; and (iv) this Assignment and Acceptance has been duly executed and delivered by it,
and constitutes the legal, valid and binding obligation of Assignor, enforceable against Assignor
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other Laws of general application relating to or affecting
creditors’ rights and to general equitable principles.



8.2 Assignor makes no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. Assignor makes no
representation or warranty in connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of Borrower, or the performance or observance by
Borrower of any of its respective obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.



8.3 Assignee represents and warrants that (i) it is duly organized and existing and it has
full power and authority to take, and has taken, all action necessary to execute and deliver this
Assignment and Acceptance and any other documents required or permitted to be executed or delivered
by it in connection with this Assignment and Acceptance, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any Person are required (other
than any already given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or filings required by the
Credit Agreement, no further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and Acceptance has been duly
executed and delivered by it, and constitutes the legal, valid and binding obligation of Assignee,
enforceable against Assignee in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other Laws of general application relating
to or affecting creditors’ rights and to general equitable principles; and (iv) it satisfies the
requirements of an Eligible Assignee under the Credit Agreement.


 


EXHIBIT A-4









 





9. Further Assurances. Assignor and Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may reasonably request in
connection with the transactions contemplated by this Assignment and Acceptance, including the
delivery of any notices or other documents or instruments to Borrower or Agent, that may be
required in connection with the assignment and assumption contemplated hereby.




10. Miscellaneous.



10.1 Any amendment or waiver of any provision of this Assignment and Acceptance shall be in
writing and signed by the parties hereto. No failure or delay by either party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without prejudice to any rights
with respect to any other or further breach thereof.




10.2 All payments made hereunder shall be made without any set-off or counterclaim.



10.3 Assignor and Assignee shall each pay its own costs and expenses incurred in connection
with the negotiation, preparation, execution and performance of this Assignment and Acceptance.



10.4 This Assignment and Acceptance may be executed in any number of counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same instrument.



10.5 THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN
THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF NEW YORK. Assignor and Assignee each irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court sitting in the State of New
York over any suit, action or proceeding arising out of or relating to this Assignment and
Acceptance, and irrevocably agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York State or Federal court. Each party to this Assignment and
Acceptance hereby irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding.



10.6 ASSIGNOR AND ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED
DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER ORAL
OR WRITTEN).


 


EXHIBIT A-5









 





IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Acceptance to be
executed and delivered by their duly authorized officers as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	[ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 





 


EXHIBIT A-6









 





SCHEDULE 1 TO EXHIBIT A




NOTICE OF ASSIGNMENT AND ACCEPTANCE




                    ,
20_____ 




To Agent:



KeyBank National Association

127 Public Square

Cleveland, Ohio 44114

Attention: Real Estate Capital



To Borrower:



BioMed Realty, L.P.

17140 Bernardo Center Drive

Suite 222

San Diego, California 92128




Ladies and Gentlemen:



We refer to the Unsecured Credit Agreement dated as of July 14, 2011 (as it may be amended,
amended and restated, modified, supplemented or renewed from time to time, the “Credit
Agreement”) among BioMed Realty, L.P. (“Borrower”), the Lenders referred to therein and
KeyBank National Association, as administrative agent for the Lenders (in such capacity,
“Agent”). Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement.



1. We hereby give you notice of, and request your consent to, the assignment by
                     (“Assignor”) to                      (“Assignee”) of
 _____% of the
right, title and interest of Assignor in and to the Credit Agreement (including, without
limitation, the right, title and interest of Assignor in and to the Line Commitment of Assignor and
all outstanding Advances made by Assignor) pursuant to the Assignment and Acceptance Agreement
attached hereto (the “Assignment and Acceptance”). Before giving effect to such
assignment, Assignor’s Line Commitment is $                    , and the aggregate amount of its outstanding
Advances is $                    . Following such assignment, Assignor’s Line Commitment will be
$                    , and Assignee’s Line Commitment will be $                    .



2. Assignee agrees that, upon receiving the consent of Agent to such assignment, Assignee will
be bound by the terms of the Credit Agreement as fully and to the same extent as if Assignee were
the Lender originally holding such interest in the Credit Agreement.


 


EXHIBIT A-7









 






3. The following administrative details apply to Assignee:



(A) Notice Address:



	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Address:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	Telephone:
	 	 

	 	 
	 

	 	Telecopier:
	 	 

	 	 
	 

	 	 	 	 

	 	 






(B) Assignee’s Payment Instructions to Agent:



	 	 	 	 	 	 	 
	 

	 	Account #:	 	 	 	 
	 

	 	At:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Reference:	 	 	 	 
	 

	 	Attention:
	 	 

	 	 
	 

	 	 	 	 

	 	 






4. You are entitled to rely upon the representations, warranties and covenants of each of
Assignor and Assignee contained in the Assignment and Acceptance.



[REMAINDER OF PAGE INTENTIONALLY BLANK]



 


EXHIBIT A-8









 







IN WITNESS WHEREOF, Assignor and Assignee have caused this Notice of Assignment and Acceptance
to be executed by their respective duly authorized officials, officers or agents as of the date
first above mentioned.



	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






ACKNOWLEDGED AND ASSIGNMENT

CONSENTED TO:



KEYBANK NATIONAL ASSOCIATION,

as Agent



	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	BIOMED REALTY, L.P., a Maryland limited partnership,

as Borrower	 	 
	 
	 	 	 	 	 	 
	By:	 	BioMed Realty Trust, Inc., its sole

General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Print Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 


EXHIBIT A-9









 







EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




[To be delivered on the Closing Date, and thereafter as provided in Section 7.1(b)]]



	 	 	 
	TO:

	 	 KeyBank National Association (“Agent”) and Lenders (as defined below).





Reference is hereby made to that certain Unsecured Credit Agreement dated as of July 14, 2011 (as
it may have been or may hereafter be amended, amended and restated, modified, supplemented or
renewed from time to time, the “Credit Agreement”), by and among BioMed Realty, L.P., a
Maryland limited partnership (“Borrower”), Agent, as Administrative Agent, and the Lenders
(as defined in the Credit Agreement). All capitalized terms used herein and not otherwise defined
shall have the meanings given to such terms in the Credit Agreement. This document is a
“Compliance Certificate” as defined in the Credit Agreement.



Borrower hereby represents and warrants to Agent and Lenders as of the date hereof:



1. (i) No Event of Default or Default has occurred and is continuing, and (ii) all
representations and warranties of Borrower set forth in Article 4 of the Credit Agreement are true
and correct in all material respects, except for changes to the representations and warranties that
were permitted under the Credit Agreement.



2. The financial statements delivered to Agent concurrently herewith are true and correct,
fairly present in all material respects the respective financial condition of the Consolidated
Group as of the date of such statements and have been prepared in accordance with Generally
Accepted Accounting Principles, except as provided therein.



3. Without limiting the generality of the representations and warranties made above, as of the
Fiscal Quarter ending                     , 201_:




(a) the Overall Leverage Ratio is
 _____%, which is [in compliance] [not in compliance]
with Section 6.5 of the Credit Agreement (see Item A of Schedule 4 attached hereto).




(b) the Unsecured Leverage Ratio is
 _____%, which is [in compliance] [not in compliance]
with Section 6.6 of the Credit Agreement (see Item B of Schedule 4 attached hereto).




(c) the Fixed Charge Coverage Ratio is
 _____ 
to
 _____, which is [in compliance] [not in
compliance] with Section 6.7 of the Credit Agreement (see Item C of Schedule 4 attached
hereto).




(d) All Distributions made during such Fiscal Quarter were made in compliance with
Section 6.8 of the Credit Agreement.




(e) the Net Worth is $                    , which is [in compliance] [not in compliance] with
Section 6.9 of the Credit Agreement (see Item E of Schedule 4 attached hereto).


 


EXHIBIT B-1









 






(f) the Unsecured Debt Service Coverage Ratio is
 _____ 
to
 _____, which is [in compliance]
[not in compliance] with Section 6.10 of the Credit Agreement (see Item F of Schedule 4
attached hereto).




(g) the Gross Asset Value is $                     (see Item J of Schedule 4 attached hereto).




(h) the Secured Indebtedness of the Consolidated Group is
 _____% of the Gross Asset
Value, which is [in compliance] [not in compliance] with Section 6.11 of the Credit
Agreement (see Item G of Schedule 4 attached hereto).




(i) the total value of undeveloped land (valued at cost) owned by the Consolidated
Group and the Consolidated Group Pro Rata Share of undeveloped land owned by Investment
Affiliates is $                    .




(j) the total amount invested by the Consolidated Group in Projects owned by the
Consolidated Group that are under development, plus the Consolidated Group Pro Rata Share of
the total amount invested in Projects owned by Investment Affiliates that are under
development, is $                    .




(k) the aggregate amount invested by the Consolidated Group in or with respect to
Investment Affiliates is $                    .




(l) the aggregate amount invested by the Consolidated Group directly or indirectly in
life science industry and related companies as described in Section 6.13(d) of the Credit
Agreement is $                    .




(m) the aggregate amount invested by the Consolidated Group in the Investments listed
as subparagraphs (i), (j), (k) and (l) above is $                    , or
 _____% of the Gross Asset
Value, which is [in compliance] [not in compliance] with Section 6.13 of the Credit
Agreement.



4. Schedule 1 attached hereto sets forth each “new” (i.e., not identified in the Credit
Agreement or in any Compliance Certificate previously delivered to Agent) Subsidiary or Investment
Affiliate of Borrower or Guarantor, and certain information with respect to such entity, as
required by Section 7.1(n) of the Credit Agreement.



5. Schedule 2 attached hereto sets forth certain information (not otherwise included in the
financial statements or other information presented to Agent), as required by Section 7.1(o) of the
Credit Agreement.



6. Schedule 3 attached hereto sets forth the current calculation of the Total Unencumbered
Asset Value. Appropriate back-up calculations (in form and detail reasonably required by Agent)
[are/are not] also provided with this Compliance Certificate.



7. Schedule 4 attached hereto sets forth calculations with respect to the financial covenants
referenced above. Appropriate back-up calculations (in form and detail approved by Agent) [are/are
not] also provided with this Compliance Certificate.


 


EXHIBIT B-2









 





8. This Compliance Certificate is executed as of the date stated below by a Senior Officer on
behalf of Borrower. The undersigned, in such capacity, hereby certifies each and every matter
contained herein (and in any accompanying backup calculations or other information) to be true and
correct in all material respects.



Dated as of                     , 201___



“BORROWER”




	 	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BioMed Realty Trust, Inc., its sole general
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name
	 	 

	 	 
	 

	 	 	 	Title
	 	 

	 	 





 


EXHIBIT B-3









 





SCHEDULE 1 TO EXHIBIT B



NEW SUBSIDIARIES OR INVESTMENT AFFILIATES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	[Other	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Information	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Reasonably	 
	 	 	 	 	 	 	 	 	 	 	Description of	 	 	Required by	 
	Name	 	Structure	 	 	Ownership	 	 	Property Owned	 	 	Agent]	 
	1.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


EXHIBIT B-4









 





SCHEDULE 2 TO EXHIBIT B




INFORMATION REGARDING

PROJECTS AND INDEBTEDNESS





	I.	 	Projects Owned by the Consolidated Group or in which a member of the Consolidated Group
Owns an Interest.






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Description and Location	 	 	 	 	 	 	 	 	 
	of Project	 	Type of Interest Held	 	 	Acquisition Date	 	 	Acquisition Cost	 
	1.
	 	 	 	 	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 	 	 	 	 







	II.	 	Indebtedness of the Consolidated Group .






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Original	 	Current	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal	 	Amount	 	 	 	 	 	 	Maturity	 	 	Extension	 	 	Interest	 	 	 	 	 	 	Recourse/	 
	Amount	 	Outstanding	 	 	Holder	 	 	Date	 	 	Options	 	 	Rate	 	 	Collateral	 	 	Nonrecourse	 
	1.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







	III.	 	Unstabilized Projects.






	 	 	 	 	 	 	 	 	 
	Description and Location of	 	 	 	 	 	 
	Project	 	Status of Development	 	 	Name of Owner	 
	1.
	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 





 


EXHIBIT B-5









 





SCHEDULE 3 TO EXHIBIT B



TOTAL UNENCUMBERED ASSET VALUE CALCULATION




Contributions of Unencumbered Projects to Total Unencumbered Asset Value (All amounts
previously multiplied by BioMed Pro Rata Share or Consolidated Group Pro Rata Share where
applicable)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Contribution to	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Total Unencumbered	 
	 	 	 	 	 	 	Applicable	 	 	Cost Basis or	 	 	Asset Value Before	 
	Property Description	 	Adjusted NOI*	 	 	Capitalization Rate	 	 	Acquisition Cost **	 	 	Reductions	 
	1.
	 	$	 	 	 	 	 	 	 	$	 	 	 	$	 	 
	2.
	 	$	 	 	 	 	 	 	 	$	 	 	 	$	 	 
	__.
	 	$	 	 	 	 	 	 	 	$	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	                    	 
	Single Project
Concentration
Reduction***
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	(                    	)
	Non-Wholly Owned
Reduction****
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	(                    	)
	Unstabilized
Project
Reduction*****
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	(                    	)
	Unencumbered Land
Parcel
Reduction******
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	(                    	)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	                    	 








	 	 	 
	*	 	For Unencumbered Projects other than Unstabilized Projects and Projects acquired after first
day of applicable Fiscal Quarter

	 
	**	 	For Unencumbered Projects that are Unstabilized Projects or are Projects acquired after first
day of applicable Fiscal Quarter

	 
	***	 	No individual Income-Producing Project may contribute more than 20% of the total amount of
the Total Unencumbered Asset Value, as provided in the definition thereof.

	 
	****	 	Unencumbered Projects not owned by Borrower or a Wholly-Owned Subsidiary in the aggregate
cannot contribute more than 10% of the total amount of the Total Unencumbered Asset Value, as
provided in the definition thereof.

	 
	*****	 	Unstabilized Projects in the aggregate cannot contribute more than 10% of the total amount
of the Total Unencumbered Asset Value, as provided in the definition thereof.

	 
	******	 	Unencumbered land parcels in the aggregate cannot contribute over 5% of the total amount of
the Total Unencumbered Asset Value, as provided in the definition thereof.









 


EXHIBIT B-6









 










SCHEDULE 4 TO EXHIBIT B




FINANCIAL COVENANTS CALCULATION




	 	 	 	 	 
	A. Compliance with Section 6.5 of the Credit Agreement (Overall Leverage Ratio)
	 	 	 	 
	 
	 	 	 	 
	1. Consolidated Outstanding Indebtedness
	 	$	                    	 
	 
	 	 	 	 
	2. Gross Asset Value
	 	$	                    	 
	 
	 	 	 	 
	3. Overall Leverage Ratio (Line A1 divided by Line A2 multiplied by 100)
	 	 	                    	%
	 
	 	 	 	 
	Line A3 shall be less than or equal to 60%
	 	 	 	 
	 
	 	 	 	 
	B. Compliance with Section 6.6 of the Credit Agreement (Unsecured Leverage Ratio)
	 	 	 	 
	 
	 	 	 	 
	1. Total Unsecured Indebtedness
	 	$	                    	 
	 
	 	 	 	 
	2. Total Unencumbered Asset Value
	 	$	                    	 
	 
	 	 	 	 
	3. Unsecured Leverage Ratio (Line B1 divided by Line B2 multiplied by 100)
	 	 	                    	%
	 
	 	 	 	 
	Line B3 shall be less than or equal to 60%
	 	 	 	 
	 
	 	 	 	 
	C. Compliance with Section 6.7 of the Credit Agreement (Fixed Charge Coverage)
	 	 	 	 
	 
	 	 	 	 
	1. Adjusted EBITDA
	 	$	                    	 
	 
	 	 	 	 
	2. Interest Expense
	 	$	                    	 
	 
	 	 	 	 
	3. Scheduled principal payments due and payable for most recent
fiscal quarter for which financial results have been reported
(excluding balloon payments)
	 	$	                    	 
	 
	 	 	 	 
	4. Preferred Distributions of Consolidated Group
	 	$	                    	 
	 
	 	 	 	 
	5. Preferred Distributions of each Investment Affiliate multiplied
by Consolidated Group Pro Rata Share for such Affiliate
	 	$	                    	 
	 
	 	 	 	 
	6. Fixed Charge Coverage ratio (Line C1 to the sum of
Line C2 thru Line C5)
	 	___ to ____
	 
	 	 	 	 
	Line C6 shall be greater than or equal to 1.50 to 1.00.
	 	 	 	 
	 
	 	 	 	 
	D. [Intentionally Omitted.]
	 	 	 	 





 


EXHIBIT B-7









 





	 	 	 	 	 
	E. Compliance with Section 6.9 of the Credit Agreement (Net Worth)
	 	 	 	 
	 
	 	 	 	 
	1. Gross Asset Value
	 	$	                    	 
	 
	 	 	 	 
	2. Consolidated Outstanding Indebtedness
	 	$	(                    	)
	 
	 	 	 	 
	3. Net Worth (Line E1 minus Line E2)
	 	$	                    	 
	 
	 	 	 	 
	4. Minimum Net Worth established at the Closing Date
	 	$	2,000,000,000	 
	 
	 	 	 	 
	5. Net proceeds from all Equity Offerings after the Closing Date
	 	$	                    	 
	 
	 	 	 	 
	6. Line E4 plus the product of .75 and Line E5
	 	$	                    	 
	 
	 	 	 	 
	Line E3 shall be greater than or equal to Line E6.
	 	 	 	 
	 
	 	 	 	 
	F. Compliance with Section 6.10 of the Credit Agreement (Unsecured Debt Service Coverage)
	 	 	 	 
	 
	 	 	 	 
	1. Adjusted Unencumbered NOI
	 	$	                    	 
	 
	 	 	 	 
	2. Unsecured Debt Service Amount
	 	$	                    	 
	 
	 	 	 	 
	3. Unsecured Debt Service Coverage Ratio (Line F1 to Line F2)
	 	           to           
	 
	 	 	 	 
	Line F3 shall be greater than or equal to 2.00 to 1.00.
	 	 	 	 
	 
	 	 	 	 
	G. Compliance with Section 6.11 of the Credit Agreement (Secured Indebtedness)
	 	 	 	 
	 
	 	 	 	 
	1. Secured Indebtedness of the Consolidated Group
	 	$	                    	 
	 
	 	 	 	 
	2. Gross Asset Value
	 	$	                    	 
	 
	 	 	 	 
	3. Percentage (Line G1 divided by Line G2 multiplied by 100)
	 	 	                    	%
	 
	 	 	 	 
	Line G3 shall be less than or equal to 40%.
	 	 	 	 
	 
	 	 	 	 
	H. Intentionally Omitted.
	 	 	 	 
	 
	 	 	 	 
	I. Calculation of Adjusted EBITDA (applicable fiscal quarter)
	 	 	 	 
	 
	 	 	 	 
	1. Net Income
	 	$	                    	 
	 
	 	 	 	 
	2. Interest
	 	$	                    	 
	 
	 	 	 	 
	3. Income Taxes
	 	$	                    	 
	 
	 	 	 	 
	4. Minority Interest
	 	 	 	 
	 
	 	 	 	 
	5. Depreciation and amortization
	 	$	                    	 





 


EXHIBIT B-8









 





	 	 	 	 	 
	6. Gains and losses on sale of investments and joint ventures
	 	$	                    	 
	 
	 	 	 	 
	7. Gains and losses on the disposition of discontinued operations
	 	$	                    	 
	 
	 	 	 	 
	8. Required rent adjustments and amortization of intangibles
	 	$	                    	 
	 
	 	 	 	 
	9. Transaction costs of acquisitions not permitted to be capitalized
	 	$	                    	 
	 
	 	 	 	 
	10. Impairment charges, property valuation losses, gains and/or losses related to
the extinguishment of debt and non-cash charges necessary to record interest rate
contracts at fair value
	 	$	                    	 
	 
	 	 	 	 
	11. Other non-cash expenses (including non-cash compensation, non-cash severance
and other non-cash restructuring charges, to the extent not actually paid as a cash
expense)
	 	$	                    	 
	 
	 	 	 	 
	12. Extraordinary or non-recurring items
	 	$	                    	 
	 
	 	 	 	 
	13. Effect of any adjustment resulting from a change in accounting principles in
determining Net Income
	 	$	                    	 
	 
	 	 	 	 
	14. Capital Reserves for Consolidated Group (divided by four (4))
	 	$	(                    	)
	 
	 	 	 	 
	15. EBITDA attributable to Investment Affiliates
	 	$	                    	 
	 
	 	 	 	 
	16. Capital Reserves for Investment Affiliates (divided by four (4))
	 	$	(                    	)
	 
	 	 	 	 
	17. Adjusted EBITDA (the sum of Lines I1 through I13
minus Line I14 plus Line I15 minus Line I16)
	 	$	                    	 
	 
	 	 	 	 
	J. Calculation of Gross Asset Value
	 	 	 	 
	 
	 	 	 	 
	1. Adjusted NOI (including Consolidated Group Pro Rata Share of
the Adjusted NOI attributable to Projects owned by Investment
Affiliates but excluding CFLS Project and Properties with negative
Adjusted NOI)
	 	$	                    	 
	 
	 	 	 	 
	2. Adjusted NOI from:
	 	 	 	 
	(a) Unstabilized Projects (including
Consolidated Group Pro Rata Share of the Adjusted NOI
attributable to Projects owned by Investment Affiliates);
	 	$	(                    	)
	(b) Projects first acquired after first day of quarter
	 	$	(                    	)
	(c) Projects disposed of during or after quarter (including
Consolidated Group’s Pro Rata Share of any such Projects
disposed of by Investment Affiliates)
	 	$	(                    	)
	(d) Total
	 	$	(                    	)
	 
	 	 	 	 
	3. General Capitalization Rate:
	 	 	7.75	%





 


EXHIBIT B-9









 





	 	 	 	 	 
	4. Base Adjusted NOI Capitalized (Line J1 minus Line J2(d)
divided by Line J3)
	 	$	                    	 
	 
	 	 	 	 
	5. Adjusted NOI for CFLS Project
	 	$	                    	 
	 
	 	 	 	 
	6. Capitalization Rate for CFLS Project
	 	 	6.50	%
	 
	 	 	 	 
	7. CFLS Project Value (Line J5 divided by Line J3)
	 	$	                    	 
	 
	 	 	 	 
	8. Unstabilized Projects (valued on Adjusted
NOI — Line J2(a) divided by Line J3)
	 	$	                    	 
	 
	 	 	 	 
	9. Unstabilized Projects (valued at cost basis)
	 	$	                    	 
	 
	 	 	 	 
	10. Projects acquired after first day of quarter (valued at
acquisition cost)
	 	$	                    	 
	 
	 	 	 	 
	11. Cash and Cash Equivalents
	 	$	                    	 
	 
	 	 	 	 
	12. Gross Asset Value (before raw land) (the sum of Lines J4, J7,
the greater of Lines J8 and J9, J10 and J11)
	 	$	                    	 
	 
	 	 	 	 
	13. Raw land held for development and including Consolidated
Group’s Pro Rata Share of any such land owned by Investment
Affiliates (valued at acquisition cost)
	 	$	                    	 
	 
	 	 	 	 
	14. 10% of Line J12
	 	$	                    	 
	 
	 	 	 	 
	15. Total Gross Asset Value (Line J12 plus the lesser of Lines
J13 and J14)
	 	$	                    	 
	 
	 	 	 	 
	K. Calculation of Funds from Operations:
	 	 	 	 
	 
	 	 	 	 
	1. Net Income (or Deficit)
	 	$	                    	 
	 
	 	 	 	 
	2. Gains for property sales
	 	$	                    	 
	 
	 	 	 	 
	3. Losses from property sales
	 	$	                    	 
	 
	 	 	 	 
	4. Depreciation and amortization (including applicable amount
attributable from Projects owned by Investment Affiliates)
	 	$	                    	 
	 
	 	 	 	 
	5. Preferred Distributions
	 	$	                    	 
	 
	 	 	 	 
	6. Minority Interest of Exchangeable Operating Partnership Units
	 	$	                    	 
	 
	 	 	 	 
	7. Gains from Debt Extinguishment and Derivatives
	 	$	                    	 
	 
	 	 	 	 
	8. Losses from Debt Extinguishment and Derivatives
	 	$	                    	 
	 
	 	 	 	 
	9. Funds From Operation (Line K1 minus Line K2 plus K3 plus
K4 plus K5 plus K6 minus K7 plus K8)
	 	$	                    	 






 


EXHIBIT B-10









 







EXHIBIT C-1




FORM OF COMPETITIVE BID QUOTE REQUEST

(Section 2.4(b))




	 	 	 
	To:

	 	KeyBank National Association

as administrative agent (the “Administrative Agent”)
	 
	 	 
	From:

	 	BioMed Realty, L.P.
	 
	 	 
	Re:

	 	Unsecured Credit Agreement dated as of July 14, 2011, as amended
among the Borrower, the Lenders from time to time party thereto,
KeyBank National Association, as Administrative Agent for the
Lenders (as amended, supplemented or otherwise modified from time to
time through the date hereof, the “Agreement”)







1. Capitalized terms used herein have the meanings assigned to them in the Agreement.



2. We hereby give notice pursuant to Section 2.4(b) of the Agreement that we request
Competitive Bid Quotes for the following proposed Competitive Bid Loan(s):



Borrowing Date:                     , 201_____ 




Principal Amount1           Interest Period2




3. Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin] [an Absolute Rate].



4. The Competitive Bid Loan [shall not be prepayable] [shall be prepayable in whole or in part
in accordance with the terms and conditions of the Agreement, and on the following special terms
specific to this Competitive Bid Loan:                     ].


 





	 	 	 
	1	 	Amount must be at least $25,000,000 and an integral
multiple of $1,000,000.

	 
	2	 	One, two, three or six months, or one to one
hundred-eighty days, subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.




 


EXHIBIT C-1-1









 





5. Upon acceptance by the undersigned of any or all of the Competitive Bid Loans offered by
Lenders in response to this request, the undersigned shall be deemed to affirm as of the Borrowing
Date thereof the representations and warranties made in Article VI of the Agreement except to the
extent any such representation or warranty is stated to relate solely to an earlier date in which
case such representation or warranty shall be reaffirmed as of such earlier date.



	 	 	 	 	 	 	 	 	 
	 	 	“Borrower”	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	BioMed Realty Trust, Inc., its sole general Partner
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT C-1-2









 







EXHIBIT C-2




INVITATION FOR COMPETITIVE BID QUOTES

(Section 2.4(c))




	 	 	 
	To:

	 	Each of the Lenders party to the Agreement referred to below
	 
	 	 
	Re:

	 	Invitation for Competitive Bid Quotes to BioMed Realty, L.P. (the “Borrower”)






Pursuant to Section 2.4(c) of the Unsecured Credit Agreement dated as of July 14, 2011
as amended from time to time, among the Borrower, the lenders from time to time party thereto, and
KeyBank National Association as Administrative Agent for the Lenders (as amended, supplemented or
otherwise modified from time to time through the date hereof, the “Agreement”), we are pleased on
behalf of the Borrower to invite you to submit Competitive Bid Quotes to the Borrower for the
following proposed Competitive Bid Loan(s):



Borrowing Date:                     ,
201_____ 




Principal Amount           Interest Period



Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin] [an Absolute Rate].
Such Competitive Bid Loans shall [not] be subject to prepayment [in accordance with the plans and
conditions of the Agreement]. Your Competitive Bid Quote must comply with Section 2.4(c)
of the Agreement and the foregoing. Capitalized terms used herein have the meanings assigned to
them in the Agreement.



Please respond to this invitation by no later than [10:00 a.m.] (Cleveland time) on
                    , 201            .



	 	 	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION, as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT C-2-1









 







EXHIBIT C-3




COMPETITIVE BID QUOTE

(Section 2.4(d))




                    , 201_




	 	 	 
	To:

	 	KeyBank National Association, as Administrative Agent
	 
	Re:

	 	Competitive Bid Quote to BioMed Realty, L.P. (the “Borrower”)






In response to your invitation on behalf of the Borrower dated                     , 201_____, we
hereby make the following Competitive Bid Quote pursuant to Section 2.4(d) of the Agreement
hereinafter referred to and on the following terms:



1. Quoting Lender:                                                                
                 



2. Person to contact at Quoting Lender:                                                        
                         1




3. Borrowing Date:                                                          
                       



4. We hereby offer to make Competitive Bid Loan(s) in the following principal amounts, for the
following Interest Periods, at the following rates and with the following prepayment terms:



	 	 	 	 	 	 	 	 	 	 	 
	Principal	 	Interest	 	[Competitive	 	[Absolute	 	Minimum	 	Prepayment
	Amount2	 	Period3	 	LIBOR Margin4]	 	Rate5]	 	Amount6	 	Terms7
	 
	 	 	 	 	 	 	 	 	 	 





 





	 	 	 
	1	 	As specified in the related Invitation For Competitive
Bid Quotes.

	 
	2	 	Principal amount bid for each Interest Period may not
exceed the principal amount requested. Bids must be made for at least
$5,000,000 and integral multiples of $1,000,000.

	 
	3	 	As specified in the related Invitation For Competitive
Bid Quotes.

	 
	4	 	Competitive LIBOR Margin for the applicable LIBOR
Interest Period. Specify percentage (rounded to the nearest 1/100 of 1%) and
specify whether “PLUS” or “MINUS”.

	 
	5	 	Specify rate of interest per annum (rounded to the
nearest 1/100 of 1%).

	 
	6	 	Specify minimum amount, if any, which the Borrower may
accept (see Section 2.4(d)(ii)(d)).

	 
	7	 	As specified in the related Invitation for Competitive
Bid Quotes.




 


EXHIBIT C-3-1









 





We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Unsecured Credit Agreement dated as of July 14, 2011, among
the Borrower, the lenders from time to time party thereto, and KeyBank National Association, as
Administrative Agent for the lenders (as amended, supplemented or otherwise modified from time to
time through the date hereof, the “Agreement”), irrevocably obligates us to make the Competitive
Bid Loan(s) for which any offer(s) are accepted, in whole or in part. Capitalized terms used
herein and not otherwise defined herein shall have their meanings as defined in the Agreement.



	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT C-3-2









 







EXHIBIT D-1




LINE NOTE




			
	$                    
	 	July
 _____, 2011






FOR VALUE RECEIVED, BIOMED REALTY, L.P., a Maryland limited partnership (“Borrower”), promises to pay to the
order of                      (“Bank”) the principal amount of
                     AND NO/100 DOLLARS
($                    ), or such lesser aggregate amount of Advances as may be made and outstanding pursuant to Bank’s Commitment under
the Credit Agreement hereinafter described, payable as hereinafter set forth but excluding Competitive Bid Advances and Swing Loans,
each of which is evidenced by a separate promissory note. Borrower promises to pay interest on the principal amount hereof remaining
unpaid from time to time from the date hereof until the date of payment in full, payable as hereinafter set forth.



Reference is made to the Unsecured Credit Agreement of even date herewith among Borrower,
Administrative Agent and the Banks (as it may have been or may hereafter be amended, amended and
restated,
modified, supplemented or renewed from time to time, the “Credit Agreement”). Terms
defined in the Credit Agreement and not otherwise defined herein are used herein with the meanings
ascribed to those terms in the Credit Agreement. This is one of the Line Notes referred to in the
Credit Agreement, and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.



The principal indebtedness evidenced by this Note shall be payable and prepayable as provided
in the Credit Agreement and in any event on the Maturity Date (which shall be July 13, 2015,
subject to extension as provided in Section 2.10 of the Credit Agreement).



Interest shall be payable on the outstanding daily unpaid principal amount of each Advance
outstanding hereunder from the date such Advance was made until payment in full, and shall accrue
and be payable at the rates and on the dates set forth in the Credit Agreement both before and
after default and before and after maturity and judgment.



The amount of each payment hereunder shall be made to Bank at Administrative Agent’s office
(as designated by Administrative Agent from time to time), for the account of Bank, in Dollars and
in immediately available funds not later than 2:00 p.m., Cleveland time, on the day of payment
(which must be a Banking Day). All payments received after 2:00 p.m., Cleveland time, on any
Banking Day, shall be deemed received on the next succeeding Banking Day. Bank shall keep a record
of Advances made by it and payments of principal with respect to this Note, and such record shall
be presumptive evidence of the principal amount owing under this Note, absent manifest error.



Without limiting any applicable provisions of the Credit Agreement, Borrower hereby promises
to pay all costs and expenses of any holder hereof incurred in collecting Borrower’s obligations
hereunder or in enforcing or attempting to enforce any of holder’s rights hereunder, including
reasonable attorneys’ fees, whether or not an action is filed in connection therewith.


 


EXHIBIT D-1-1









 





Borrower hereby waives presentment, demand for payment, dishonor, notice of dishonor, protest,
notice of protest, and any other notice or formality, to the fullest extent permitted by applicable
Laws.



Assignment of this Note is subject to the consent of certain parties pursuant to Section 11.8
of the Credit Agreement.



This Note shall be delivered to and accepted by Bank in the State of New York, and shall be
governed by, and construed and enforced in accordance with, the internal Laws thereof without
regard to the choice of law provisions thereof.



	 	 	 	 	 	 	 	 	 
	 	 	“Borrower”	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BioMed Realty Trust, Inc., its sole general
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT D-1-2









 







EXHIBIT D-2




COMPETITIVE BID NOTE




July __, 2011




FOR VALUE RECEIVED, BIOMED REALTY, L.P., a Maryland limited partnership (“Borrower”), promises
to pay to the order of                      (“Lender”) amount of Competitive Bid Advances made
by Lender and outstanding under the Credit Agreement hereinafter described, payable as hereinafter
set forth. Borrower promises to pay interest on the principal amount hereof remaining unpaid from
time to time from the date hereof until the date of payment in full, payable as set forth in the
Credit Agreement.



Reference is made to the Unsecured Credit Agreement of even date herewith among Borrower,
Administrative Agent and the Lenders (as it may have been or may hereafter be amended, amended and
restated, modified, supplemented or renewed from time to time, the “Credit Agreement”). Terms
defined in the Credit Agreement and not otherwise defined herein are used herein with the meanings
ascribed to those terms in the Credit Agreement. This is one of the Competitive Notes referred to
in the Credit Agreement, and any holder hereof is entitled to all of the rights, remedies, benefits
and privileges provided for in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.



The principal indebtedness evidenced by this Note shall be payable and prepayable as provided
in the Credit Agreement and in any event on the Maturity Date (which shall be July
 _____, 2015,
subject to extension as provided in Section 2.10 of the Credit Agreement).



Interest shall be payable on the outstanding daily unpaid principal amount of each Competitive
Bid Advance outstanding hereunder from the date such Competitive Bid Advance was made until payment
in full, and shall accrue and be payable at the rates and on the dates set forth in the Credit
Agreement both before and after default and before and after maturity and judgment.



The amount of each payment hereunder shall be made to Lender at Administrative Agent’s office
(as designated by Administrative Agent from time to time), for the account of Bank, in Dollars and
in immediately available funds not later than 2:00 p.m., Cleveland time, on the day of payment
(which must be a Banking Day). All payments received after 2:00 p.m., Cleveland time, on any
Banking Day, shall be deemed received on the next succeeding Banking Day. Lender shall keep a
record of Advances made by it and payments of principal with respect to this Note, and such record
shall be presumptive evidence of the principal amount owing under this Note, absent manifest error.



Without limiting any applicable provisions of the Credit Agreement, Borrower hereby promises
to pay all costs and expenses of any holder hereof incurred in collecting Borrower’s obligations
hereunder or in enforcing or attempting to enforce any of holder’s rights hereunder, including
reasonable attorneys’ fees, whether or not an action is filed in connection therewith.


 


EXHIBIT D-2-1









 





Borrower hereby waives presentment, demand for payment, dishonor, notice of dishonor, protest,
notice of protest, and any other notice or formality, to the fullest extent permitted by applicable
Laws.



Assignment of this Note is subject to the consent of certain parties pursuant to Section 11.8
of the Credit Agreement.



This Note shall be delivered to and accepted by Lender in the State of New York, and shall be
governed by, and construed and enforced in accordance with, the internal Laws thereof without
regard to the choice of law provisions thereof.



	 	 	 	 	 	 	 	 	 
	 	 	“Borrower”	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BioMed Realty Trust, Inc., its sole general
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT D-2-2









 







EXHIBIT E




FORM OF REQUEST FOR LOAN



	 	 	 
	TO

	 	KeyBank National Association (“Agent”) and Lenders (as defined below).










This Request For Loan (this “Request For Loan”) is made pursuant to Section
2.1 of that certain Unsecured Credit Agreement dated as of July 14, 2011 (as it may have been
or may hereafter be amended, amended and restated, modified, supplemented or renewed from time to
time, the “Credit Agreement”) by and among BioMed Realty, L.P., a Maryland limited
partnership (“Borrower”), Agent and Lenders (as defined in the Credit Agreement). All
capitalized terms used herein and not otherwise defined shall have the meanings given to such terms
in the Credit Agreement. This document is a “Request For Loan” as defined in the Credit Agreement.
This document is not a request for a Competitive Bid Loan.




	1.	 	Check one of the following:







	o	 	Borrower hereby requests that Lenders make a Loan pursuant to the Credit Agreement as
follows:







	 	(a)	 	Amount of Loan: $                    .

	 
	 	(b)	 	Date of Loan:                     .

	 
	 	(c)	 	Type of Loan (check one box only):






	 	 	 
	o      LIBOR Rate Loan with Interest
Period of
 _____.

	 	o      Base Rate Loan







	o	 	Borrower hereby requests that Lenders redesignate outstanding Base Rate Loans heretofore made or redesignated as
follows:







	 	(a)	 	Total Amount of Loans to be Redesignated: $                    .

	 
	 	(b)	 	Date of Redesignation:                     .

	 
	 	(c)	 	Type of Loan as so Redesignated: LIBOR Rate Loan with a                     -month Interest
Period ending                     , 201
 _____.







	o	 	 Borrower hereby requests that Lenders renew outstanding LIBOR Rate Loans heretofore made as
follows:







	 	(a)	 	Total Amount of Loans to be Renewed: $                    .

	 
	 	(b)	 	Date of Renewal:                     .

	 
	 	(c)	 	Type of Loan as so Renewed: LIBOR Rate Loan with a                     -month Interest
Period ending                     , 201
 _____.





 


EXHIBIT E-1









 






	o	 	Borrower hereby requests that Agent, in its capacity as Swing Loan Lender, advance a Swing
Loan pursuant to the Credit Agreement as follows:







	 	(a)	 	Amount of Swing Loan: $                    .

	 
	 	(b)	 	Date of Swing Loan:                     .






2. In connection with any Loan (or redesignation or renewal) requested herein, Borrower hereby
represents, warrants and certifies to Agent for the benefit of Lenders that as of the date of the
Loan (or redesignation or renewal) requested herein, both immediately before and after giving
effect to the same, (i) no Event of Default or Default has occurred and is continuing, (ii) all
representations and warranties of Borrower set forth in Article 4 of the Credit Agreement are true
and correct in all material respects, except for changes to the representations and warranties that
were permitted under the Credit Agreement and (iii) the Outstanding Facility Amount does not exceed
the Aggregate Commitment.



3. This Request for Loan is executed as of the date stated below by a Senior Officer on behalf
of Borrower. The undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.



Dated as of                     , 201___




	 	 	 	 	 	 	 	 	 
	 	 	“BORROWER”	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P.,

a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	BioMed Realty Trust, Inc., its sole general
Partner
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT E-2









 







EXHIBIT F




SWING LOAN NOTE




			
	 	 	 
	$75,000,000
	 	July
 _____, 2011






FOR VALUE RECEIVED, BIOMED REALTY, L.P., a Maryland limited partnership (“Borrower”), promises
to pay to the order of KEYBANK NATIONAL ASSOCIATION, a national banking association (“Bank”) the
principal amount of SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($75,000,000), or such lesser or
greater aggregate amount of Swing Loans as may be made and outstanding pursuant to Bank’s Swing
Loan Commitment under the Credit Agreement hereinafter described, payable as hereinafter set forth.
Borrower promises to pay interest on the principal amount hereof remaining unpaid from time to
time from the date hereof until the date of payment in full, payable as hereinafter set forth.



Reference is made to the Unsecured Credit Agreement of even date herewith among Borrower,
Administrative Agent and the Banks (as it may have been or may hereafter be amended, amended and
restated, modified, supplemented or renewed from time to time, the “Credit Agreement”). Terms
defined in the Credit Agreement and not otherwise defined herein are used herein with the meanings
ascribed to those terms in the Credit Agreement. This is the Swing Loan Note referred to in the
Credit Agreement, and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.



The principal indebtedness evidenced by this Note shall be payable and prepayable as provided
in the Credit Agreement and in any event on the Maturity Date (which shall be July
 _____, 2015,
subject to extension as provided in Section 2.10 of the Credit Agreement).



Interest shall be payable on the outstanding daily unpaid principal amount of each Swing Loan
outstanding hereunder from the date such Swing Loan was made until payment in full, and shall
accrue and be payable at the rates and on the dates set forth in the Credit Agreement both before
and after default and before and after maturity and judgment.



The amount of each payment hereunder shall be made to Bank at Administrative Agent’s office
located in Cleveland, Ohio, for the account of Bank, in lawful money of the United States of
America and in immediately available funds not later than 2:00 p.m., Cleveland time, on the day of
payment (which must be a Banking Day). All payments received after 2:00 p.m., Cleveland time, on
any Banking Day, shall be deemed received on the next succeeding Banking Day. Bank shall keep a
record of Swing Loans made by it and payments of principal with respect to this Note, and such
record shall be presumptive evidence of the principal amount owing under this Note, absent manifest
error.



Without limiting any applicable provisions of the Credit Agreement, Borrower hereby promises
to pay all costs and expenses of any holder hereof incurred in collecting Borrower’s obligations
hereunder or in enforcing or attempting to enforce any of holder’s rights hereunder, including
reasonable attorneys’ fees, whether or not an action is filed in connection therewith.


 


EXHIBIT F-1









 





Borrower hereby waives presentment, demand for payment, dishonor, notice of dishonor, protest,
notice of protest, and any other notice or formality, to the fullest extent permitted by applicable
Laws.



This Note shall be delivered to and accepted by Bank in the State of New York, and shall be
governed by, and construed and enforced in accordance with, the internal Laws thereof without
regard to the choice of law provisions thereof.



	 	 	 	 	 	 	 	 	 
	 	 	“Borrower”:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY, L.P., a Maryland limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BioMed Realty Trust, Inc., its sole general
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


EXHIBIT F-2









 







EXHIBIT G




FORM OF LETTER OF CREDIT REQUEST




KeyBank National Association




Application and Agreement for Irrevocable Standby Letter of Credit




	 	 	 	 	 
	To:

	 	International Standby Services Group

	 	Date:
	 

	 	4910 Tiedeman, 4th floor 

Brooklyn, Ohio 44144

Mailcode: OH-01-51-0435

Fax Number: (216) 813-3719	 	 






Please issue your Irrevocable Letter of Credit and notify the Beneficiary by:



	 	 	 	 	 
	o Mail

	 	o Swift/Telex
	 	o Courier






	 	 	 
	Beneficiary: (show full name & complete street address)

	 	Applicant: (show full name & complete street address)
	 
	 	 
	Expiration Date:                     

	 	Dollar Amount (USD): $
	 
	 	 
	o Automatic Extension Clause          Days Notice:                     
	 	(Amount in words):
	o Ultimate Expiration Date:
	 	 






Available by Drafts at sight drawn on you and accompanied by the following documents:



	 	 	 	 	 	 	 
	o

	 	 	1.	 	 	Beneficiary’s statement purportedly signed by an authorized individual of (Beneficiary) certifying “The
Principal, (Applicant), has not performed or fulfilled all the undertakings, covenants and conditions in
accordance with the terms of the agreement dated                      between (Applicant) and (Beneficiary)”.
	 
	 	 	 	 	 	 
	o

	 	 	2.	 	 	Beneficiary’s statement purportedly signed by an authorized individual or (Beneficiary) certifying “We
hereby certify that invoices under sales agreement between (Applicant) and (Beneficiary) have been
submitted for payment and said invoices are past due and payable”.
	 
	 	 	 	 	 	 
	o

	 	 	3.	 	 	Beneficiary’s statement purportedly signed by an authorized individual of (Beneficiary) certifying “We
hereby certify that (Applicant) has failed to honor their contractual agreement dated                      between
(Applicant) and (Beneficiary) and that payment has not been made and
is                      past due.
	 
	 	 	 	 	 	 
	o

	 	 	4.	 	 	Beneficiary’s statement purportedly signed by one of its authorized individuals certifying that
(Applicant) was the successful bidder under the Tender No.                      dated
                     for supply of                      and that
                     (Applicant) has withdrawn their bid or failed to enter into contract.
	 
	 	 	 	 	 	 
	o

	 	 	5.	 	 	Beneficiary’s statement, purportedly signed by an authorized individual reading:
	 

	 	 	 	 	 	(Please indicate below the wording which is to appear in the statement to be presented.)
	 
	 	 	 	 	 	 
	o

	 	 	6.	 	 	No statement or document by the Beneficiary other than a draft is required to be presented under this L/C.





 


EXHIBIT G-1









 





	 	 	 	 	 	 	 	 	 	 	 
	Partial Drawings:
	 	o Permitted
	 	o Not Permitted
	 	Charges for:
	 	o Beneficiary
	 	o Applicant






Special instructions or conditions:



 




 




 




The opening of this credit is governed by the terms and conditions as set forth
in the credit agreement. Furthermore, the applicant shall include revisions of
the terminology set forth above as you deem necessary. I/we hereby agree to
the terms and conditions, covenants, and agreements above.



This application and agreement are subject to the current uniform customs and
practice for documentary credits fixed the International Chamber of Commerce
and to the terms and conditions set forth in the Reimbursement Agreement.



	 	 	 	 	 
	 

	 	 	 	Date:                     
	 

	 	 	 	 
	(Customer’s Signature)

	 	(Customer’s Bank Sign Here —

if other than KeyBank National Association)	 	 





 


EXHIBIT G-2









 





KeyBank National Association




Application for Amendment to Standby Letter of Credit




	 	 	 
	To:

	 	International Standby Services Group

4910 Tiedeman, 4th floor

Brooklyn, Ohio 44144

Mailcode: OH-01-51-0435

Fax Number: (216) 813-3718






	 	 	 	 	 
	Date:

	 	Amendment #:
	 	Letter of Credit #:






	 	 	 	 	 	 	 
	Please amend by:

	 	o Airmail
	 	o Cable/Swift
	 	o Courier






o Extend Expiration Date to:



	 	 	 	 	 	 	 
	o Increase

	 	o Decrease
	 	By: $
	 	New Total: $






	 	 	 
	o Change Address

	 	New Address:







o Beneficiary

o Applicant



o Add     o Delete



The following documentary requirement(s) / special instruction(s):



 




 




o Other:



 




 




We understand that amendments to Irrevocable Standby Letters of Credit are subject to acceptance by
the beneficiary. All other terms and conditions of the original Letter of Credit, the Application
for the same, and the Agreement for Standby Letters of Credit and Security Agreement remain
unchanged. This application shall include revisions of the terminology set forth above as you deem
necessary.



	 	 	 
	Applicant Name:
	 	 
	Authorized Signature:

	 	Title/Phone Number:
	Authorized Signature:

	 	Title/Phone Number:







 


EXHIBIT G-3











 




EXHIBIT H




PARENT GUARANTY




This Parent Guaranty (the “Guaranty”) is made as of July
 ________, 2011 by BioMed Realty
Trust, Inc., a Maryland corporation (“Guarantor”), to and for the benefit of KeyBank
National Association, individually (“KeyBank”) and as administrative agent (the
“Administrative Agent”) for itself and the lenders under the Credit Agreement (as defined
below) and their respective successors and assigns (collectively, the “Lenders”).



RECITALS




A. BioMed Realty, L.P., a limited partnership organized under the laws of the State of
Maryland (“Borrower”), and Guarantor have requested that the Lenders make a revolving
credit facility available to Borrower in an aggregate principal amount of up to $750,000,000,
subject to future increase to up to $1,250,000,000 (the “Facility”).



B. The Lenders have agreed to make available the Facility to Borrower pursuant to the terms
and conditions set forth in an Unsecured Credit Agreement of even date herewith among Borrower,
KeyBank, individually, and as Administrative Agent, and the Lenders named therein (as amended,
modified or restated from time to time, the “Credit Agreement”). All capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such terms in the Credit
Agreement.



C. Borrower has executed and delivered or will execute and deliver to the Lenders promissory
notes in the principal amount of each Lender’s Commitment as evidence of Borrower’s indebtedness to
each such Lender with respect to the Facility (the promissory notes described above, together with
any amendments or allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Credit Agreement, are collectively referred to herein as
the “Notes”).



D. Guarantor is the sole general partner of Borrower. Guarantor acknowledges that the
extension of credit by the Administrative Agent and the Lenders to Borrower pursuant to the Credit
Agreement will benefit Guarantor by enhancing the financial strength of the consolidated group of
which Guarantor and Borrower are members. The execution and delivery of this Guaranty by Guarantor
is a condition precedent to the performance by the Lenders of their obligations under the Credit
Agreement.



E. As a condition to the execution of the Loan Agreement and the extension and modification of
the terms of the Loan, the Lenders and the Administrative Agent have required that Guarantor
execute this Guaranty.


 


EXHIBIT H-1









 





AGREEMENTS




NOW, THEREFORE, Guarantor, in consideration of the matters described in the foregoing
Recitals, which Recitals are incorporated herein and made a part hereof, and for other good and
valuable consideration, hereby agree as follows:




1. Guarantor absolutely, unconditionally, and irrevocably guaranties to each of the Lenders:




(a) the full and prompt payment of the principal of and interest on the Notes when due,
whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, and
the prompt payment of all sums that may now be or may hereafter become due and owing under
the Notes, the Credit Agreement, and the other Loan Documents;




(b) the payment of all Enforcement Costs (as hereinafter defined in Paragraph 7
hereof); and




(c) the full, complete, and punctual observance, performance, and satisfaction of all
of the obligations, duties, covenants, and agreements of Borrower under the Credit Agreement
and the Loan Documents.



All amounts due, debts, liabilities, and payment obligations described in subparagraphs (a) and (b)
of this Paragraph 1 are referred to herein as the “Facility Indebtedness.” All
obligations described in subparagraph (c) of this Paragraph 1 are referred to herein as the
“Obligations.”



2. In the event of any default by Borrower in making payment of the Facility Indebtedness, or
in performance of the Obligations, as aforesaid, in each case beyond the expiration of any
applicable grace period, Guarantor agrees, on demand by the Administrative Agent, to pay all the
Facility Indebtedness and to perform all the Obligations as are then or thereafter become due and
owing or are to be performed under the terms of the Notes, the Credit Agreement, and the other Loan
Documents.



3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty by the Administrative
Agent and the Lenders and any and all notices and demands of every kind that may be required to be
given by any Law, (ii) any defense or right of set-off that Guarantor may have against Borrower or
that Guarantor or Borrower may have against the Administrative Agent or the Lenders or the holder
of a Note, (iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in Paragraph 2
above) or dishonor, protest and notice of protest, diligence in collection and any and all
formalities that otherwise might be legally required to charge Guarantor with liability, (iv) any
defense based on the failure by the Administrative Agent and the Lenders to inform Guarantor of any
facts the Administrative Agent and the Lenders may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Credit Agreement, it being understood and agreed
that the Administrative Agent and the Lenders have no duty so to inform and that Guarantor is fully
responsible for being and remaining informed by Borrower of all circumstances bearing on the
existence or creation, or the risk of nonpayment of the Facility Indebtedness or the risk of
nonperformance of the Obligations, (v) any and all right to cause a marshalling of assets of
Borrower or any other action by any court or governmental body with respect thereto, or to cause
the Administrative Agent and the Lenders to proceed against any other security given to a Lender in
connection with the Facility Indebtedness or the Obligations, (vi) invalidity or unenforceability
of any Facility Indebtedness or Obligation and (vii) any statute of limitations of any jurisdiction
affecting any term of


 


EXHIBIT H-2









 






the
Facility Indebtedness or the Obligations.  Credit may be granted or
continued from time to time by the Lenders to Borrower without notice to or authorization from
Guarantor, regardless of the financial or other condition
of Borrower at the time of any such grant or continuation. The Administrative Agent and the
Lenders shall have no obligation to disclose or discuss with Guarantor the Lenders’ assessment of
the financial condition of Borrower. Guarantor acknowledges that no representations of any kind
whatsoever have been made by the Administrative Agent and the Lenders to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be binding upon the
Administrative Agent and the Lenders except as expressly set forth in a writing duly signed and
delivered on behalf of the Administrative Agent and the Lenders.



4. Guarantor further agrees that Guarantor’s liability as guarantor shall in no way be
impaired by any renewals or extensions that may be made from time to time, with or without the
knowledge or consent of Guarantor of the time for payment of interest or principal under a Note or
by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by
the Administrative Agent and the Lenders under the Credit Agreement, or any other Loan Documents,
or by the Administrative Agent or the Lenders’ failure or election not to pursue any other remedies
they may have against Borrower, or by any change or modification in a Note, the Credit Agreement,
or any other Loan Documents, or by the acceptance by the Administrative Agent or the Lenders of any
security or any increase, substitution or change therein, or by the release by the Administrative
Agent and the Lenders of any security or any withdrawal thereof or decrease therein, or by the
application of payments received from any source to the payment of any obligation other than the
Facility Indebtedness, (unless such payment was expressly directed to be applied to the Facility
Indebtedness and such direction was made in accordance with the Loan Documents) even though a
Lender might lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Guarantor shall remain liable as principal for
payment of the Facility Indebtedness and performance of the Obligations until all Indebtedness has
been paid in full and the other terms, covenants and conditions of the Credit Agreement, and the
other Loan Documents and this Guaranty have been performed, notwithstanding any act or thing that
might otherwise operate as a legal or equitable discharge of a surety. Guarantor further
understands and agrees that the Administrative Agent and the Lenders may at any time enter into
agreements with Borrower to amend or modify a Note, the Credit Agreement or any of the other Loan
Documents and may waive or release any provision or provisions of a Note, the Credit Agreement or
any other Loan Document and, with reference to such instruments, may make and enter into any such
agreement or agreements as the Administrative Agent, the Lenders and Borrower may deem proper and
desirable, without in any manner impairing this Guaranty or any of the Administrative Agent and the
Lenders’ rights hereunder or any of Guarantor’s obligations hereunder.



5. This is an absolute, unconditional, complete, present and continuing guaranty of payment
and performance and not of collection. Guarantor agrees that its obligations hereunder shall be
joint and several with any and all other guarantees given in connection with the Facility from time
to time. Guarantor agrees that this Guaranty may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of resorting to or exhausting any security or collateral,
if any, given in connection herewith or with a Note, the Credit Agreement, or any of the other Loan
Documents or by or resorting to any other guaranties, and Guarantor hereby waives the right to
require the Administrative Agent and the Lenders to join Borrower in any action brought hereunder
or to commence any action against or obtain any judgment against Borrower or to pursue any other
remedy or enforce any other right. Guarantor further agrees that nothing contained herein or
otherwise shall prevent the Administrative Agent and the


 


EXHIBIT H-3









 






Lenders from pursuing concurrently or
successively all rights and remedies available to them at Law and/or in equity or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall not constitute a
discharge of any of Guarantor’s obligations hereunder, it being the purpose and intent of Guarantor
that the obligations of such Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither Guarantor’s obligations under
this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by any impairment, modification, change, release or limitation of
the liability of Borrower under a Note, the Credit Agreement or any other Loan Document or by
reason of Borrower’s bankruptcy or by reason of any creditor or bankruptcy proceeding instituted by
or against Borrower. This Guaranty shall continue to be effective and be deemed to have continued
in existence or be reinstated (as the case may be) if at any time payment of all or any part of any
sum payable pursuant to a Note, the Credit Agreement or any other Loan Document is rescinded or
otherwise required to be returned by the payee upon the insolvency, bankruptcy, or reorganization
of the payor, all as though such payment to such Lender had not been made, regardless of whether
such Lender contested the order requiring the return of such payment. The obligations of Guarantor
pursuant to the preceding sentence shall survive any termination, cancellation, or release of this
Guaranty.



6. This Guaranty shall be assignable by a Lender to any assignee of all or a portion of such
Lender’s rights under the Loan Documents.



7. If: (i) this Guaranty, a Note, or any of the Loan Documents are placed in the hands of an
attorney for collection or is collected through any legal proceeding; (ii) an attorney is retained
to represent the Administrative Agent or any Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors’ rights and involving a claim under this
Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an attorney is retained to
enforce any of the other Loan Documents or to provide advice or other representation with respect
to the Loan Documents in connection with an enforcement action or potential enforcement action; or
(iv) an attorney is retained to represent the Administrative Agent or any Lender in any other legal
proceedings whatsoever in connection with this Guaranty, a Note, the Credit Agreement, any of the
Loan Documents, or any property securing the Facility Indebtedness (other than any action or
proceeding brought by any Lender or participant against the Administrative Agent alleging a breach
by the Administrative Agent of its duties under the Loan Documents), then Guarantor shall pay to
the Administrative Agent or such Lender upon demand all reasonable attorney’s fees, costs and
expenses, including, without limitation, court costs, filing fees and all other costs and expenses
incurred in connection therewith (all of which are referred to herein as “Enforcement
Costs”), in addition to all other amounts due hereunder.



8. The parties hereto intend that each provision in this Guaranty comports with all applicable
Law. However, if any provision or provisions, or if any portion of any provision or provisions, in
this Guaranty is found by a court of competent jurisdiction to violate any applicable Law or public
policy, and if such court should declare such portion, provision or provisions of this Guaranty to
be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of all
parties hereto that such portion, provision or provisions shall be given force to the fullest
possible extent that they are legal, valid and enforceable, that the remainder of this Guaranty
shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion, provision
or provisions were not contained therein, and that the rights, obligations and interest of
the Administrative Agent and the Lender or the holder of a Note under the remainder of this
Guaranty shall continue in full force and effect.


 


EXHIBIT H-4









 





9. Any Indebtedness of Borrower to Guarantor now or hereafter existing is hereby subordinated
to the Facility Indebtedness. Guarantor will not seek, accept, or retain for Guarantor’s own
account, any payment from Borrower on account of such subordinated Indebtedness at any time when a
Default or Event of Default exists under the Credit Agreement or the Loan Documents, and any such
payments to Guarantor made while any Default or Event of Default then exists under the Credit
Agreement or the Loan Documents on account of such subordinated Indebtedness shall be collected and
received by Guarantor in trust for the Lenders and shall be paid over to the Administrative Agent
on behalf of the Lenders on account of the Facility Indebtedness without impairing or releasing the
obligations of Guarantor hereunder.



10. Guarantor hereby subordinates to the Facility Indebtedness any and all claims and rights,
including, without limitation, subrogation rights, contribution rights, reimbursement rights and
set-off rights, which Guarantor may have against Borrower arising from a payment made by Guarantor
under this Guaranty and agrees that, until the entire Facility Indebtedness is paid in full, not to
assert or take advantage of any subrogation rights of Guarantor or the Lenders or any right of
Guarantor or the Lenders to proceed against (i) Borrower for reimbursement, or (ii) any other
guarantor or any collateral security or guaranty or right of offset held by the Lenders for the
payment of the Facility Indebtedness and performance of the Obligations, nor shall Guarantor seek
or be entitled to seek any contribution or reimbursement from Borrower or any other guarantor in
respect of payments made by Guarantor hereunder. It is expressly understood that the agreements of
Guarantor set forth above constitute additional and cumulative benefits given to the Lenders for
their security and as an inducement for their extension of credit to Borrower.



11. Any amounts received by a Lender from any source on account of any Facility Indebtedness
may be applied by such Lender toward the payment of such Facility Indebtedness, and in such order
of application as is set forth in the Credit Agreement.



12. Guarantor hereby submits to personal jurisdiction in the State of Ohio for the enforcement
of this Guaranty and waives any and all personal rights to object to such jurisdiction for the
purposes of litigation to enforce this Guaranty. Guarantor hereby consents to the jurisdiction of
either the Cuyahoga County Common Pleas Court in Cleveland, Ohio or the United States District
Court in Cleveland, Ohio, in any action, suit, or proceeding that the Administrative Agent or a
Lender may at any time wish to file in connection with this Guaranty or any related matter.
Guarantor hereby agrees that an action, suit, or proceeding to enforce this Guaranty may be brought
in any state or federal court in the State of Ohio and hereby waives any objection that Guarantor
may have to the laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph 12 shall not be deemed to preclude the
Administrative Agent or a Lender from filing any such action, suit, or proceeding in any other
appropriate forum.


 


EXHIBIT H-5









 





13. All notices and other communications provided to any party hereto under this Guaranty
shall be in writing or by telex or by facsimile and addressed or delivered to such party at its
address set forth below or at such other address as may be designated by such party in a notice to
the other parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted. Notice may be given as follows:




To Guarantor:




BioMed Realty Trust, Inc.

17190 Bernardo Center Drive

San Diego, California 92128

Attention: Vice President, Real Estate Counsel

Telephone: (858)485-9840

Facsimile: (858) 485-9843





With a copy to:




Latham & Watkins LLP

600 West Broadway, Suite 1800

San Diego, California 92101

Attention: Steven J. Levine, Esq.

Telephone: (619) 236-1234

Facsimile: (619) 696-7419




To KeyBank as Administrative Agent and as a Lender:




KeyBank National Association

127 Public Square

Cleveland, Ohio 44114

Attention: Real Estate Capital

Phone: (216) 689-5989

Facsimile: (216) 689-4997




With a copy to:




SNR Denton US LLP

233 South Wacker Drive

Suite 7800

Chicago, Illinois 60606

Attention: Patrick G. Moran, Esq.

Telephone: (312) 876-8132

Facsimile: (312) 876-7934




If to any other Lender, to its address set forth in the Credit Agreement.



14. This Guaranty shall be binding upon the heirs, executors, legal and personal
representatives, successors and assigns of Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders’ successors and assigns.


 


EXHIBIT H-6









 





15. This Guaranty shall be governed by, and construed in accordance with, the Laws of the
State of New York without any regard to conflict of Law principles that would result in the
application of any Law other than the Laws of New York.



16. GUARANTOR, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP THAT IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


EXHIBIT H-7









 





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



	 	 	 	 	 	 	 	 	 
	 	 	BIOMED REALTY TRUST, INC.,

a Maryland corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





 


EXHIBIT H-8









 







EXHIBIT I




DESIGNATION AGREEMENT




Dated:
________________, 201_____




Reference is made to the Unsecured Credit Agreement dated as of July 14, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among BioMed Realty,
L.P., the Lenders parties thereto, and KeyBank National Association, as Administrative Agent (the
“Administrative Agent”) for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meaning.



_____________________________________________ (the “Designor”), ________________________________ 
(the “Designee”), the
Administrative Agent and the Borrower agree as follows:



1. The Designor hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Competitive Bid Loans pursuant to Section 2.4 of the
Credit Agreement. Any assignment by Designor to Designee of its rights to make a Competitive Bid
Loan pursuant to such Section 2.4 shall be effective at the time of the funding for such
Competitive Bid Loan and not before such time.



2. The Designor makes no representation or warranty and assumes no responsibility pursuant to
this Designation Agreement with respect to (a) any statements, warranties or representations made
in or in connection with any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument and document
furnished pursuant thereto and (b) the financial condition of the Borrower or Guarantor or the
performance or observance by the Borrower or Guarantor or any of their respective obligations under
any Loan Document or any other instrument or document furnished pursuant thereto. (It is
acknowledged that the Designor may make representations and warranties of the type described above
in other agreements to which the Designor is a party.)



3. The Designee (a) confirms that it has received a copy of each Loan Document, together with
copies of the financial statements referred to in Section 7.1 of the Credit Agreement and such
other documents and information as it has deemed appropriate to make its own independent credit
analysis and decision to enter into this Designation Agreement; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designor 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 Loan Document; (c) confirms that
it is a Designated Lender; (d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under any Loan Document as are
delegated to the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of any Loan Document are required to be
performed by it as a Lender.


 


EXHIBIT I-1









 





4. The Designee hereby appoints Designor as Designee’s agent and attorney in fact, and grants
to Designor an irrevocable power of attorney, to deliver and receive all communications and notices
under the Credit Agreement and other Loan Documents and to exercise on Designee’s behalf all rights
to vote and to grant and made approvals, waivers,
consents or amendment to or under the Credit Agreement or other Loan Documents. Any document
executed by the Designor on the Designee’s behalf in connection with the Credit Agreement or other
Loan Documents shall be binding on the Designee. The Borrower, the Administrative Agent and each
of the Lenders may rely on and are beneficiaries of the preceding provisions.



5. Following the execution of this Designation Agreement by the Designor and its Designee, it
will be delivered to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date for this Designation Agreement (the “Effective Date”) shall be the date
of acceptance hereof by the Administrative Agent, unless otherwise specified on the signature page
thereto.



6. Neither the Administrative Agent nor the Borrower shall institute, or join any other person
in instituting, against the Designee any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law at
any time that the Designee has any outstanding debt or other securities which are rated by S&P,
Moody’s or any other rating agency or at any time within one year and one day after the date such
debt or other securities have been repaid in full.



7. The Designor unconditionally agrees to pay or reimburse the Designee and save the Designee
harmless against all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed or
asserted by any of the parties to the Loan Documents against the Designee, in its capacity as such,
in any way relating to or arising out of this Designation Agreement or any other Loan Documents or
any action taken or omitted by the Designee hereunder or thereunder, provided that the
Designor shall not be liable for any portion of such liabilities, obligations, losses, damage,
penalties, actions, judgments, suits, costs, expenses or disbursements if the same results from the
Designee’s gross negligence or willful misconduct.



8. Upon such acceptance and recording by the Administrative Agent, as of the Effective Date,
the Designee shall be a party to the Credit Agreement with a right to make Competitive Bid Advances
as pursuant to Section 2.4 of the Credit Agreement and the rights and obligations of a
Lender related thereto.



9. This Designation Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York, without reference to the provisions thereof regarding conflicts of law.



10. This Designation Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Designation Agreement by facsimile transmission
shall be effective as of delivery of a manually executed counterpart of this Designation Agreement.


 


EXHIBIT I-2









 





IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally bound, have caused
this Designation Agreement to be executed by their officers thereunto duly authorized as of the
date first above written.



Effective Date1
 _____________________, 201__



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	as
	 	 	Designor	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By: 	 	 	 
	 

	 	 	Title:	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	as
	 	 	Designee	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By: 	 	 	 
	 

	 	 	Title:	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Applicable Lending Office (and address for notices):	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 

	 	Attention:	 	 	 
	 

	 	Re: Account No. 	 	 	 





 






	 	 	 
	1	 	This date should be no earlier than five Banking Days
after the delivery of this Designation Agreement to the Administrative Agent.



 


EXHIBIT I-3









 









Accepted this ____ day of _______________, 201_




	 	 	 	 	 	 	 	 	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION	 	 	 	BIOMED REALTY, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	 	 	 	 	 	 	By: BioMed Realty Trust Inc.,
	 	 
	 	 	 	 	 	 	 	 	 	 	 
		 	Name:	 	 	 	 	 	        its general partner	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	Title:	 	 
	 	 	 		 	 	 	 
	 

	 	 
	 	 	 	 	 		 	 
	 	 
	 	 		 	 
	 	 	 	By:	 	 	 	 
	 

	 	 
	 	
	 	 	 		Name:  	 
	 	 
	 

	 	 
	 	 	 	 	 	 	Title:
	 

	 	 
	 

	 	 	 	
	 	 	 	 	 	 

	 	 







 


EXHIBIT I-4











 




SCHEDULE 4.4



SUBSIDIARIES




	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	1. BioMed Realty, L.P.

	 	Limited Partnership
	 	0.3% GP Interest by BioMed Realty Trust, Inc. 

97.5% LP Interest by BioMed Realty Trust, Inc. 

2.2% LP Interest by others
	 	Maryland
	 
	 	 	 	 	 	 
	2. BioMed Realty Holdings, Inc.

	 	Corporation
	 	100% by BioMed Realty , L.P.
	 	Maryland
	 
	 	 	 	 	 	 
	3. BioMed Realty Trust, Inc. REIT Qualification Trust

	 	Trust
	 	100% Beneficiary is BioMed
Realty Holdings, Inc.
	 	California
	 
	 	 	 	 	 	 
	4. BioMed Realty LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	5. BioMed Realty Development LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	6. BMR-JV I Holdings LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	7. BMR-JV II Holdings LLC

	 	Limited Liability Company
	 	100% by BioMed
Realty Holdings, Inc.
	 	Delaware
	 
	 	 	 	 	 	 
	8. BioMed Ventures LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	9. BMV Direct LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	10. BMR-217th Place LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	11. BMR-270 Albany Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	12. BMR-34790 Ardentech Court LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-1









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	13. BMR-34175 Ardenwood Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	14. 34175 Ardenwood Venture, LLC

	 	Limited Liability Company
	 	87.5% Membership Interest by BMR-34175 Ardenwood Boulevard LLC 

12.5% Membership Interest by Tarlton-Wohl Venture Nine, LLC
	 	Delaware
	 
	 	 	 	 	 	 
	15. BMR-Ardsley Park LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	16. BMR-8808 Balboa Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	California
	 
	 	 	 	 	 	 
	17. BMR-Bayshore Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	18. BMR-6411 Beckley Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	19. Guilford Real Estate Trust 1998-1

	 	Grantor Trust
	 	100% Beneficiary is BioMed Realty, L.P., Trustee is BMR-6411 Beckley Street LLC
	 	Utah
	 
	 	 	 	 	 	 
	20. BMR-Belward Campus Drive LSM LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Maryland
	 
	 	 	 	 	 	 
	21. BMR-9920 Belward Campus Q LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Rhode Island
	 
	 	 	 	 	 	 
	22. BMR-17190 Bernardo Center Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	23. BMR-Blackfan Circle LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	24. BMR-Bridgeview Technology Park LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	25. BMR-Bridgeview Technology Park II LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-2









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	26. BMR-Bridgeview Technology Park III LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	27. BMR-3030 Bunker Hill Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	28. BMR-58 Charles Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	29. BMR-134 Coolidge Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	30. BMR-Cray Court LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	31. BMR-6300 Dumbarton Circle LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	32. BMR-350 E Kendall F LLC

	 	Limited Liability Company
	 	100% by BMR-PR II LLC
	 	Delaware
	 
	 	 	 	 	 	 
	33. BMR-650 E Kendall B LLC

	 	Limited Liability Company
	 	100% by BMR-PR II LLC
	 	Delaware
	 
	 	 	 	 	 	 
	34. BMR-475 Eccles Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	35. BMR-2600 Eisenhower Road LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	36. BMR-201 Elliott Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	37. BMR-21 Erie Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	38. BMR-40 Erie Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	39. BMR-Executive Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	40. BMR-4570 Executive Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-3









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	41. BMR-500 Fairview Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	42. BMR-530 Fairview Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	43. BMR-2282 Faraday Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	44. BMR-Forbes Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	45. BMR-Fresh Pond Research Park LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	46. BMR-700 Gateway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	47. BMR-750,800,850 Gateway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	48. BMR-900 Gateway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	49. BMR-1000 Gateway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	50. BMR-Gateway/Oyster LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	51. BMR-Gateway Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	52. BMR-Gazelle Court LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	53. BMR-350 George Patterson Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	54. BMR-7 Graphics Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	55. BMR-201 Industrial Road LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-4









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	56. BMR-John Hopkins Court LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	57. BMR-3525 John Hopkins Court LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	58. BMR-6500 Kaiser Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	59. BMR-450 Kendall Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	60. BMR-500 Kendall Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	61. BMR-Kendall Development LLC

	 	Limited Liability Company
	 	100% by BMR-PR II TRS LLC
	 	Delaware
	 
	 	 	 	 	 	 
	62. BMR-Kendall Holdings LLC

	 	Limited Liability Company
	 	100% by BMR-PR II TRS LLC
	 	Delaware
	 
	 	 	 	 	 	 
	63. BMR-145 King of Prussia Road GP LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	64. BMR-145 King of Prussia Road LP

	 	Limited Partnership
	 	99.5% LP Interest of BioMed Realty, L.P. 

0.5% GP Interest of BMR-145 King of
Prussia Road GP LLC
	 	Delaware
	 
	 	 	 	 	 	 
	65. BMR-Landmark at Eastview LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	66. BMR-7 Lucent Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	67. 10165 McKellar Court, L.P.

	 	Limited Partnership
	 	21% GP Interest by BMR-10165 McKellar Court GP LLC

79% LP Interest by Quidel Corporation
	 	California
	 
	 	 	 	 	 	 
	68. BMR-10165 McKellar Court GP LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	California





 


SCHEDULE 4.4-5









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	69. BMR-Medical Center Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	70. BMR-3450 Monte Villa Parkway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P. BioMed Realty LLC is Managing Member
	 	Delaware
	 
	 	 	 	 	 	 
	71. BMR-6114-6154 Nancy Ridge Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	72. BMR-6828 Nancy Ridge Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	73. BMR-One Research Way LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	74. BMR-180 Oyster Point LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	75. BMR-200 Oyster Point LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	76. BMR-Pacific Center Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	77. BMR-3500 Paramount Parkway LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	78. BMR-Patriot LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	79. BMR-335-395 Phoenixville Pike LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	80. BMR-PR II LLC

	 	Limited Liability Company
	 	20% BMR-JV I Holdings LLC, 80% Prudential
	 	Delaware
	 
	 	 	 	 	 	 
	81. BMR-PR II TRS LLC

	 	Limited Liability Company
	 	20% BMR-JV II Holdings LLC, 80% Prudential
	 	Delaware
	 
	 	 	 	 	 	 
	82. BMR-Research Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-6









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	83. BMR-10835 Road to the Cure LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	84. BMR-Rogers Street LLC

	 	Limited Liability Company
	 	100% by BMR-PR II LLC
	 	Delaware
	 
	 	 	 	 	 	 
	85. BMR-10240 Science Center Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	86. BMR-10255 Science Center Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	87. BMR-Shady Grove Road HQ LLC

	 	Limited Liability Company
	 	100% by BMR-Shady Grove Holdings LLC
	 	Maryland
	 
	 	 	 	 	 	 
	88. BMR-Shady Grove Holdings LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	89. BMR-Shady Grove B LLC

	 	Limited Liability Company
	 	100% by BMR-Shady Grove Holdings LLC
	 	Delaware
	 
	 	 	 	 	 	 
	90. BMR-Shady Grove D LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	91. BMR-200 Sidney Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	92. BMR-Sorrento Plaza LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	93. BMR-Sorrento Valley LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	94. BMR-11388 Sorrento Valley Road LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	95. BMR-Sorrento West LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	96. BMR-Spring Mill Drive GP LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	97. BMR-Spring Mill Drive, L.P.

	 	Limited Partnership
	 	1% GP Interest by BMR-Spring Mill Drive GP LLC 99% LP Interest by BioMed Realty, L.P.
	 	Delaware





 


SCHEDULE 4.4-7









 





	 	 	 	 	 	 	 
	Name of Subsidiary	 	Form of Legal Entity	 	Ownership	 	Jurisdiction
	 
	98. BMR-Torreyana LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	99. BMR-9865 Towne Centre Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	100. BMR-9885 Towne Centre Drive LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	101. BMR-Trade Centre Avenue LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	102. BMR-6611 Tributary Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Maryland
	 
	 	 	 	 	 	 
	103. BMR-900 Uniqema Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	104. BMR-1000 Uniqema Boulevard LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	105. BMR-325 Vassar Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	106. BMR-3200 Walnut Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	107. BMR-Waples LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	108. BMR-675 West Kendall Street LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	109. BMR-50 West Watkins Mill LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	110. BMR-West Watkins Mill LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware
	 
	 	 	 	 	 	 
	111. BMR-Weston LLC

	 	Limited Liability Company
	 	100% by BioMed Realty, L.P.
	 	Delaware






 


SCHEDULE 4.4-8









 







SCHEDULE 4.10




MATERIAL LITIGATION




None.



 


SCHEDULE 4.10-1









 







SCHEDULE 4.17




HAZARDOUS MATERIALS MATTERS




As disclosed in the environmental reports previously delivered to the Administrative Agent.



 


SCHEDULE 4.17-1









 







SCHEDULE 4.19




PROJECTS




	 	 	 
	Property Name	 	Ownership
	1. 1522 217th Place S.E.

	 	Fee Simple
	 
	 	 
	2. 270 Albany Street

	 	Fee Simple
	 
	 	 
	3. 34790 Ardentech Court

	 	Fee Simple
	 
	 	 
	4. 34175 Ardenwood Boulevard

	 	Fee Simple-through 87.5% interest in LLC
	 
	 	 
	5. 410, 420, 430, 440, 444 and 460 Saw Mill River Road, Ardsley, New York 10502

	 	Fee Simple
	 
	 	 
	6. 8808 Balboa Avenue

	 	Fee Simple
	 
	 	 
	7. Brisbane Technology Park
(3240, 3260, 3280 Bayshore Boulevard)

	 	Fee Simple
	 
	 	 
	8. 6411 Beckley Street

	 	Fee Simple-through 100% interest in a trust
	 
	 	 
	9. 9911 Belward Campus Blvd

	 	Fee Simple
	 
	 	 
	10. 9920 Belward Campus Drive

	 	Fee Simple
	 
	 	 
	11. 320 Bent Street

	 	Leasehold Interest*
	 
	 	 
	12. 301 Binney Street

	 	Leasehold Interest*
	 
	 	 
	13. 152 Sixth Street (Kendall Crossing Apt)

	 	Leasehold Interest*
	 
	 	 
	14. 17190 Bernardo Center Drive

	 	Fee Simple
	 
	 	 
	15. 3 Blackfan Circle

	 	Fee Simple
	 
	 	 
	16. Bridgeview Technology Park

(24500 Clawiter Road; 

24600 Industrial Boulevard)

	 	Fee Simple
	 
	 	 
	17. Bridgeview Technology Park II

(24590 Clawiter Road)

	 	Fee Simple
	 
	 	 
	18. Bridgeview Technology Park III

(24546 Industrial Boulevard)

	 	Fee Simple
	 
	 	 
	19. 3030 Bunker Hill Street

	 	Fee Simple
	 
	 	 
	20. 58 Charles Street

	 	Fee Simple
	 
	 	 
	21. 134 Coolidge Avenue

	 	Fee Simple





 


SCHEDULE 4.19-1









 





	 	 	 
	Property Name	 	Ownership
	22. 6300 Dumbarton Circle

	 	Fee Simple
	 
	 	 
	23. 475 Eccles Avenue

	 	Fee Simple
	 
	 	 
	24. 2600 Eisenhower Road

	 	Fee Simple
	 
	 	 
	25. 201 Elliott Avenue

	 	Fee Simple
	 
	 	 
	26. 21 Erie Street

	 	Fee Simple
	 
	 	 
	27. 40 Erie Street

	 	Fee Simple
	 
	 	 
	28. 47 Erie Street

	 	Fee Simple
	 
	 	 
	29. 4775 and 4785 Executive Drive

	 	Fee Simple
	 
	 	 
	30. 4570 Executive Drive

	 	Fee Simple
	 
	 	 
	31. 500 Fairview Avenue

	 	Fee Simple
	 
	 	 
	32. 530 Fairview Avenue

	 	Fee Simple
	 
	 	 
	33. 2282 Faraday Avenue

	 	Fee Simple
	 
	 	 
	34. 530-540 Forbes Boulevard

	 	Fee Simple
	 
	 	 
	35. Fresh Pond Research Park

(25, 27/31, 33/45, 51 and 61 Moulton Street and 665 Concord Avenue)

	 	Fee Simple
	 
	 	 
	36. 700 Gateway Boulevard

	 	Fee Simple
	 
	 	 
	37. 750, 800, and 850 Gateway Boulevard

	 	Fee Simple
	 
	 	 
	38. 900 Gateway LLC

	 	Fee Simple
	 
	 	 
	39. 1000 Gateway LLC

	 	Fee Simple
	 
	 	 
	40. 7333, 7555, 7575, 7677, 7707, 7979, 7999, 7700, 7600, and 7500 Gateway Boulevard (Pacific Research Center)

	 	Fee Simple
	 
	 	 
	41. 2855 Gazelle Court

	 	Fee Simple
	 
	 	 
	42. 350 George Patterson Boulevard

	 	Fee Simple
	 
	 	 
	43. 7 Graphics Drive

	 	Fee Simple
	 
	 	 
	44. 201 Industrial Road

	 	Fee Simple
	 
	 	 
	45. 3545-3575 John Hopkins Court

	 	Fee Simple





 


SCHEDULE 4.19-2









 





	 	 	 
	Property Name	 	Ownership
	46. 3525 John Hopkins Court

	 	Fee Simple
	 
	 	 
	47. 6500 Kaiser Drive

	 	Fee Simple
	 
	 	 
	48. 500 Kendall Street

	 	Fee Simple
	 
	 	 
	49. 350 Kendall Street

	 	Fee Simple*
	 
	 	 
	50. 650 East Kendall Street

	 	Fee Simple*
	 
	 	 
	51. 145 King of Prussia Road

	 	Fee Simple-through 100% GP and LP interest
	 
	 	 
	52. Landmark at Eastview

(777, 771, 769, 767, 765 Old Saw Mill River Rd.)

(735,745 and 755 Old Saw Mill River Rd.)

	 	Fee Simple
	 
	 	 
	53. 7 Lucent Drive

	 	Fee Simple
	 
	 	 
	54. 10165 McKellar Court

	 	Fee Simple*
	 
	 	 
	55. 9704 and 9708 — 9714 Medical Center Drive

	 	Fee Simple
	 
	 	 
	56. 3450-3451 Monte Villa Parkway

	 	Fee Simple
	 
	 	 
	57. 6114, 6118, 6122, 6124, 6126 and 6154 Nancy Ridge Drive

	 	Fee Simple
	 
	 	 
	58. 6828 Nancy Ridge Drive

	 	Fee Simple
	 
	 	 
	59. One Research Way

	 	Fee Simple
	 
	 	 
	60. 180 Oyster Point Boulevard

	 	Fee Simple
	 
	 	 
	61. 200 Oyster Point Boulevard

	 	Fee Simple
	 
	 	 
	62. 5870 and 5880 Pacific Center Boulevard

	 	Fee Simple
	 
	 	 
	63. 3500 Paramount Parkway

	 	Fee Simple
	 
	 	 
	64. 3908 Patriot Drive

	 	Fee Simple
	 
	 	 
	65. 335-339 Phoenixville Pike

	 	Fee Simple
	 
	 	 
	66. 1701 and 1711 Research Boulevard

	 	Fee Simple
	 
	 	 
	67. 10835 Road to the Cure

	 	Fee Simple
	 
	 	 
	68. 10240 Science Center Drive

	 	Fee Simple
	 
	 	 
	69. 10255 Science Center Drive

	 	Fee Simple





 


SCHEDULE 4.19-3









 





	 	 	 
	Property Name	 	Ownership
	70. 14200 Shady Grove Road

	 	Fee Simple-through 100% interest in LLC
	 
	 	 
	71. 200 Sidney Street

	 	Fee Simple
	 
	 	 
	72. 11404 and 11408 Sorrento Valley Road

	 	Fee Simple
	 
	 	 
	73. 4215 Sorrento Valley Boulevard

	 	Fee Simple
	 
	 	 
	74. 11388 Sorrento Valley Road

	 	Fee Simple
	 
	 	 
	75. 11080, 11100, 11120 and 11180 Roselle Street and 11055, 11095, 11111, 11125, and 11175 Flintkote Avenue

	 	Fee Simple
	 
	 	 
	76. 2-30 Spring Mill Drive

	 	Fee Simple-through 100% GP and LP interest.
	 
	 	 
	77. 11010 Torreyana Road

	 	Fee Simple
	 
	 	 
	78. 9855 and 9865 Towne Centre Drive

	 	Fee Simple
	 
	 	 
	79. 9875 and 9885 Towne Centre Drive

	 	Fee Simple
	 
	 	 
	80. 2600 and 2620 Trade Centre Avenue

	 	Fee Simple
	 
	 	 
	81. 6611 Tributary Street

	 	Fee Simple
	 
	 	 
	82. 900 Uniqema Boulevard

	 	Fee Simple
	 
	 	 
	83. 1000 Uniqema Boulevard

	 	Fee Simple
	 
	 	 
	84. 325 Vassar Street

	 	Fee Simple
	 
	 	 
	85. 9535 Waples Street

	 	Fee Simple
	 
	 	 
	86. 1825, 1865, 1885 33rd Street/ 3200 Walnut Street

	 	Fee Simple
	 
	 	 
	87. 675 West Kendall Street

	 	Fee Simple
	 
	 	 
	88. 50 West Watkins Mill Road

	 	Fee Simple
	 
	 	 
	89. 55 and 65 West Watkins Road

	 	Fee Simple
	 
	 	 
	90. 3000 Weston Parkway

	 	Fee Simple








	 	 	 
	*	 	Such properties are owned by Investment Affiliates of Borrower.





 


SCHEDULE 4.19-4









 







SCHEDULE 1.1




BANK COMMITMENTS AND PERCENTAGES

(to be updated on allocation)*




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Percentage	 
	KeyBank
	 	$	86,500,000	 	 	 	11.5	%
	Wells Fargo
	 	 	86,500,000	 	 	 	11.5	%
	U.S. Bank
	 	 	60,000,000	 	 	 	8.0	%
	Raymond James
	 	 	60,000,000	 	 	 	8.0	%
	UBS Loan Finance LLC
	 	 	50,000,000	 	 	 	6.7	%
	Morgan Stanley
	 	 	50,000,000	 	 	 	6.7	%
	Deutsche Bank
	 	 	50,000,000	 	 	 	6.7	%
	Sumitomo
	 	 	43,000,000	 	 	 	5.7	%
	RBS Citizens, N.A. dba Charter One
	 	 	43,000,000	 	 	 	5.7	%
	Regions Bank
	 	 	43,000,000	 	 	 	5.7	%
	PNC Bank
	 	 	43,000,000	 	 	 	5.7	%
	Comerica Bank
	 	 	30,000,000	 	 	 	4.0	%
	TD Bank
	 	 	30,000,000	 	 	 	4.0	%
	Sovereign
	 	 	25,000,000	 	 	 	3.3	%
	Bank of East Asia
	 	 	10,000,000	 	 	 	1.3	%
	Bank Hapoalim
	 	 	10,000,000	 	 	 	1.3	%
	Mega/ICBC
	 	 	10,000,000	 	 	 	1.3	%
	Land Bank of Taiwan
	 	 	10,000,000	 	 	 	1.3	%
	Chang HWA
	 	 	10,000,000	 	 	 	1.3	%
	 
	 	 	 	 	 	 
	TOTAL:
	 	$	750,000,000	 	 	 	100.0	%
	 
	 	 	 	 	 	 








	 	 	 
	*	 	Schedule 1.1 may be subsequently revised from time to time to reflect assignments of a Bank’s
interest in the Loans as contemplated in Section 11.8, and reductions in the Aggregate
Commitment pursuant to Section 2.7, or increases in the Aggregate Commitment pursuant to
Section 2.8.




 


SCHEDULE 1.1









 





SCHEDULE 1.2




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	LIBOR Rate	 	 	Facility Fee	 
	Credit Rating (S&P/Fitch and Moody’s)	 	Base Rate Margin	 	 	Margin	 	 	Percentage	 
	At least A- and A3
	 	 	0.00	%	 	 	1.00	%	 	 	0.25	%
	At least BBB+ and Baa1
	 	 	0.25	%	 	 	1.25	%	 	 	0.25	%
	At least BBB or Baa2
	 	 	0.50	%	 	 	1.45	%	 	 	0.25	%
	At least BBB- or Baa3
	 	 	0.75	%	 	 	1.55	%	 	 	0.35	%
	Below BBB- and Baa3
	 	 	1.25	%	 	 	2.05	%	 	 	0.45	%






The Credit Ratings to be utilized for purposes of this Schedule are those ratings assigned to
the senior unsecured long-term debt securities of Guarantor without third-party credit enhancement
and any rating assigned to any other debt security of Guarantor shall be disregarded. The
applicable Credit Rating in effect at any date is that in effect at the close of business on such
date. The first two categories, with the lowest margins, require a Credit Rating at the specified
level by at least two of Moody’s, S&P and Fitch. The second two categories require Credit Ratings
from at least two of the rating agencies and a Credit Rating at the specified level from at least
one of Moody’s, S&P and Fitch. The final category, with the highest margin, will apply if the
Credit Ratings from Moody’s, S&P and Fitch are all below the specified level or if the Guarantor
does not have a Credit Rating from at least two of Moody’s, S&P and Fitch.



 


SCHEDULE 1.2









 







SCHEDULE 1.3




EXISTING LETTERS OF CREDIT




1. $7,800,000 Letter of Credit issued for the benefit of DPR Construction, Inc. with an expiration
date of 7/28/11.




 


SCHEDULE 1.3