Exhibit 10.1




 





 


$1,000,000,000


 


FIRST PRIORITY CREDIT AGREEMENT


 


dated as of March 13, 2009


 


among




iSTAR FINANCIAL INC.,


 


 


THE BANKS LISTED HEREIN,


 


 


JPMORGAN CHASE BANK, N.A.

as Administrative Agent,


 


BANK OF AMERICA, N.A. 

and

CITICORP NORTH AMERICA, INC., 

as Syndication Agents,


 


 


J.P. MORGAN SECURITIES INC.,

BANC OF AMERICA SECURITIES LLC

and

CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners




 





 

















 


Table of Contents


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  Section 1.1. Definitions

  	
  1

  
	
  Section 1.2. Accounting Terms and Determinations

  	
  24

  
	
  Section 1.3. Types of Borrowings

  	
  25

  
	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
  25

  
	
   

  	
   

  
	
  Section 2.1. Commitments to Lend

  	
  25

  
	
  Section 2.2. Notice of Borrowing

  	
  25

  
	
  Section 2.3. Notice to Banks; Funding of Loans; Replacement of
  Defaulting Bank

  	
  26

  
	
  Section 2.4. Notes

  	
  27

  
	
  Section 2.5. Method of Electing Interest Rates

  	
  28

  
	
  Section 2.6. Interest Rates

  	
  29

  
	
  Section 2.7. Fees

  	
  30

  
	
  Section 2.8. Maturity Date

  	
  30

  
	
  Section 2.9. Optional Prepayments

  	
  30

  
	
  Section 2.10. Mandatory Prepayments; Cure

  	
  31

  
	
  Section 2.11. General Provisions as to Payments

  	
  31

  
	
  Section 2.12. Non-Pro Rata Prepayments

  	
  32

  
	
  Section 2.13. Funding Losses

  	
  32

  
	
  Section 2.14. Computation of Interest and Fees

  	
  33

  
	
  Section 2.15. Use of Proceeds

  	
  33

  
	
  Section 2.16. Payments

  	
  33

  
	
  Section 2.17. Collateral

  	
  33

  
	
  Section 2.18. Mortgages

  	
  35

  
	
   

  	
   

  
	
  ARTICLE III CONDITIONS

  	
  36

  
	
   

  	
   

  
	
  Section 3.1. Closing

  	
  36

  
	
  Section 3.2.  Borrowings

  	
  39

  
	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS AND WARRANTIES

  	
  40

  
	
   

  	
   

  
	
  Section 4.1. Existence and Power

  	
  40

  
	
  Section 4.2. Power and Authority

  	
  40

  
	
  Section 4.3. No Violation

  	
  40

  
	
  Section 4.4. Financial Information

  	
  41

  
	
  Section 4.5. Litigation

  	
  41

  
	
  Section 4.6. Compliance with ERISA

  	
  41

  
	
  Section 4.7. Environmental

  	
  42

  
	
  Section 4.8. Taxes

  	
  42

  
	
  Section 4.9. Full Disclosure

  	
  43

  
	
  Section 4.10. Solvency

  	
  43

  



 


i

















 


	
  Section 4.11. Use of Proceeds

  	
  43

  
	
  Section 4.12. Governmental Approvals

  	
  43

  
	
  Section 4.13. Investment Company Act

  	
  43

  
	
  Section 4.14. Principal Offices

  	
  43

  
	
  Section 4.15. REIT Status

  	
  43

  
	
  Section 4.16. Patents, Trademarks, etc.

  	
  44

  
	
  Section 4.17. Judgments

  	
  44

  
	
  Section 4.18. No Default

  	
  44

  
	
  Section 4.19. Licenses, etc.

  	
  44

  
	
  Section 4.20. Compliance with Law

  	
  44

  
	
  Section 4.21. No Burdensome Restrictions

  	
  44

  
	
  Section 4.22. Brokers’ Fees

  	
  44

  
	
  Section 4.23. Labor Matters

  	
  45

  
	
  Section 4.24. Insurance

  	
  45

  
	
  Section 4.25. Organizational Documents

  	
  45

  
	
  Section 4.26. Unencumbered Assets and Indebtedness

  	
  45

  
	
  Section 4.27. Ownership of Property; Liens

  	
  45

  
	
  Section 4.28. Subsidiaries

  	
  45

  
	
  Section 4.29. Security Documents

  	
  46

  
	
  Section 4.30. Mortgages

  	
  46

  
	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS

  	
  46

  
	
   

  	
   

  
	
  Section 5.1. Information

  	
  46

  
	
  Section 5.2. Payment of Obligations

  	
  49

  
	
  Section 5.3. Maintenance of Property; Insurance; Leases

  	
  49

  
	
  Section 5.4. Maintenance of Existence

  	
  50

  
	
  Section 5.5. Compliance with Laws

  	
  50

  
	
  Section 5.6. Inspection of Property, Books and Records

  	
  50

  
	
  Section 5.7. Existence

  	
  51

  
	
  Section 5.8. Deposit Accounts

  	
  51

  
	
  Section 5.9. Independent Director

  	
  51

  
	
  Section 5.10. Financial Covenants and Restricted Payments

  	
  52

  
	
  Section 5.11. Restriction on Fundamental Changes

  	
  52

  
	
  Section 5.12. Changes in Business

  	
  53

  
	
  Section 5.13. Borrower Status

  	
  53

  
	
  Section 5.14. Other Indebtedness

  	
  53

  
	
  Section 5.15. Liens

  	
  54

  
	
  Section 5.16. Prepayments of Secured Exchange Notes, Other
  Notes; Second Priority Bank Facilities; Existing Credit Agreements and
  Amendments

  	
  55

  
	
  Section 5.17. Coverage Test

  	
  56

  
	
  Section 5.18. Forward Equity Contracts

  	
  56

  
	
  Section 5.19. Restrictive Agreements

  	
  56

  
	
  Section 5.20. Limitation on Activities of the Collateral SPVs

  	
  56

  
	
  Section 5.21. Transactions with Affiliates

  	
  57

  
	
  Section 5.22. Post-Closing Covenants

  	
  57

  



 


ii

















 


	
  ARTICLE VI DEFAULTS

  	
  57

  
	
   

  	
   

  
	
  Section 6.1. Events of Default

  	
  57

  
	
  Section 6.2. Rights and Remedies

  	
  60

  
	
  Section 6.3. Notice of Default

  	
  61

  
	
  Section 6.4. Distribution of Proceeds after Default

  	
  61

  
	
   

  	
   

  
	
  ARTICLE VII THE AGENTS; CERTAIN MATTERS RELATING TO THE BANKS

  	
  61

  
	
   

  	
   

  
	
  Section 7.1. Appointment and Authorization

  	
  61

  
	
  Section 7.2. Agency and Affiliates

  	
  62

  
	
  Section 7.3. Action by Agents

  	
  62

  
	
  Section 7.4. Consultation with Experts

  	
  62

  
	
  Section 7.5. Liability of Agents

  	
  62

  
	
  Section 7.6. Indemnification

  	
  63

  
	
  Section 7.7. Credit Decision

  	
  63

  
	
  Section 7.8. Successor Agent

  	
  63

  
	
  Section 7.9. Consents and Approvals

  	
  64

  
	
   

  	
   

  
	
  ARTICLE VIII CHANGE IN CIRCUMSTANCES

  	
  64

  
	
   

  	
   

  
	
  Section 8.1. Basis for Determining Interest Rate Inadequate or
  Unfair

  	
  64

  
	
  Section 8.2. Illegality

  	
  65

  
	
  Section 8.3. Increased Cost and Reduced Return

  	
  65

  
	
  Section 8.4. Taxes

  	
  67

  
	
  Section 8.5. Base Rate Loans Substituted for Affected
  Euro-Currency Loans

  	
  70

  
	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
  70

  
	
   

  	
   

  
	
  Section 9.1. Notices

  	
  70

  
	
  Section 9.2. No Waivers

  	
  71

  
	
  Section 9.3. Expenses; Indemnification

  	
  71

  
	
  Section 9.4. Sharing of Set-Offs

  	
  72

  
	
  Section 9.5. Amendments and Waivers

  	
  73

  
	
  Section 9.6. Successors and Assigns

  	
  74

  
	
  Section 9.7. Governing Law; Submission to Jurisdiction; Judgment
  Currency

  	
  76

  
	
  Section 9.8. Counterparts; Integration; Effectiveness

  	
  77

  
	
  Section 9.9. WAIVER OF JURY TRIAL

  	
  77

  
	
  Section 9.10. Survival

  	
  78

  
	
  Section 9.11. Domicile of Loans

  	
  78

  
	
  Section 9.12. Limitation of Liability

  	
  78

  
	
  Section 9.13. Recourse Obligation

  	
  78

  
	
  Section 9.14. Confidentiality

  	
  78

  
	
  Section 9.15. USA Patriot Act

  	
  79

  
	
  Section 9.16. Acknowledgements. The Borrower hereby acknowledges
  that:

  	
  79

  
	
  Section 9.17. Releases of Guarantees and Liens

  	
  79

  



 


iii

















 


	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1.1A

  	
   

  	
  Commitments

  
	
  SCHEDULE 1.1B

  	
   

  	
  Listed Eligible Assets

  
	
  SCHEDULE 1.1C

  	
   

  	
  Pledged Collateral List

  
	
  SCHEDULE 1.1D

  	
   

  	
  Permitted Liens

  
	
  SCHEDULE 4.4(b)

  	
   

  	
  Material Indebtedness

  
	
  SCHEDULE 4.6(a)

  	
   

  	
  Multiemployer Plans/Collective Bargaining Agreements

  
	
  SCHEDULE 4.26

  	
   

  	
  Unencumbered Assets, Unsecured Debt

  
	
  SCHEDULE 4.28

  	
   

  	
  Subsidiaries

  
	
  SCHEDULE 4.29

  	
   

  	
  Filing Jurisdictions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  Form of Borrowing Base Certificate

  
	
  EXHIBIT B

  	
   

  	
  Form of Cash Flow Projections

  
	
  EXHIBIT C

  	
   

  	
  Form of Security Agreement

  
	
  EXHIBIT D

  	
   

  	
  Form of Collateral Report

  
	
  EXHIBIT E

  	
   

  	
  Form of Collateral Trust Agreement

  
	
  EXHIBIT F

  	
   

  	
  Form of Guarantee Agreement

  
	
  EXHIBIT G

  	
   

  	
  Form of Note

  
	
  EXHIBIT H

  	
   

  	
  Notice Addresses

  
	
  EXHIBIT I

  	
   

  	
  Transfer Supplement

  
	
  EXHIBIT J

  	
   

  	
  Form of Mortgage

  



 


iv

















 


FIRST PRIORITY CREDIT AGREEMENT


 


FIRST PRIORITY CREDIT AGREEMENT (this “Agreement”)
dated as of March 13, 2009, among iSTAR FINANCIAL INC. (the “Borrower”),
the BANKS listed on the signature pages hereof, JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent, BANK OF AMERICA, N.A. and CITICORP NORTH AMERICA,
INC., as Syndication Agents, and J.P. MORGAN SECURITIES INC., BANC OF AMERICA
SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and
Joint Bookrunners.


 


W I T N E S S E T H


 


WHEREAS, the Borrower has requested that the
Banks provide a delayed-draw term loan credit facility; and


 


WHEREAS, the Banks are willing to do so on
the terms and conditions set forth herein;


 


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


 


ARTICLE I


 


DEFINITIONS


 


Section 1.1. Definitions. The following terms, as used
herein, have the following meanings:


 


“Administrative Agent” means JPMorgan
Chase Bank, N.A. in its capacity as the Administrative Agent hereunder, and its
permitted successors in such capacity in accordance with the terms of this Agreement.


 


“Administrative Questionnaire” means
with respect to each Bank, an administrative questionnaire in the form prepared
by the Administrative Agent and submitted to the Administrative Agent (with a
copy to the Borrower) duly completed by such Bank.


 


“Affiliate”, as applied to any Person,
means any other Person that directly or indirectly controls, is controlled by,
or is under common control with, that Person. For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”), as applied to any Person, means the
possession, directly or indirectly, of the power to vote ten percent (10.0%) or
more of the equity securities having voting power for the election of directors
of such Person or otherwise to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting equity
securities or by contract or otherwise.


 


“Agents” means the Administrative
Agent, the Syndication Agents, the Joint Lead Arrangers and the Joint
Bookrunners, collectively.


 

















 


“Agreement” means this First Priority
Credit Agreement as the same may from time to time hereafter be modified,
supplemented or amended.


 


“Applicable Lending Office” means with
respect to any Bank, (i) in the case of its Base Rate Loans, its Domestic
Lending Office and (ii) in the case of its Euro-Currency Loans, its
Euro-Currency Lending Office.


 


“Applicable Margin” means with respect
to each Loan, the respective percentages per annum determined, at any time,
based on the range into which the Borrower’s Credit Rating then falls, in
accordance with the table set forth below. Any change in the Borrower’s Credit
Rating causing it to move to a different range on the table shall effect an
immediate change in the Applicable Margin. 
In the event that the Borrower has two (2) or more Credit Ratings
that are not all equivalent, the Applicable Margin shall be determined by the
higher Credit Rating from either S&P or Moody’s.  In the event that the Borrower has only one (1) Credit
Rating, the Applicable Margin shall be determined by such Credit Rating.  In the event that the Borrower does not have
a Credit Rating, the Applicable Margin shall be the highest percentage per
annum set forth on the table below.


 


	
  Range
  of the Borrower’s

  Credit Rating

  (S&P/Moody’s Ratings)

  	
   

  	
  Applicable
  Margin for

  Base Rate Loans

  (% per annum)

  	
   

  	
  Applicable
  Margin for

  Euro Currency Loans

  (% per annum)

  
	
   

  	
  <BBB+/Baa1

  	
   

  	
  1.25

  	
   

  	
  2.25

  
	
   

  	
  <BBB/Baa2

  	
   

  	
  1.50

  	
   

  	
  2.50

  



 


“Assignee” has the meaning set forth
in Section 9.6(c).


 


“Available Commitments” means, as to
any Bank at any time, an amount equal to the excess, if any, of (i) such
Bank’s Commitment then in effect over (ii) the aggregate principal amount
of Loans made by such Bank to the Borrower pursuant to Section 2.1.


 


“Available Secured Bank Exposure”
means, on any date of determination, the sum of (i) the aggregate undrawn
commitments under the New Credit Agreements on such date and (ii) the
total amount of all Available Commitments hereunder on such date.


 


“Available Secured Note Exposure”
means, on any date of determination, the excess of (i) $1,000,000,000 over
(ii) the total aggregate principal amount of Second Priority Secured
Exchange Notes issued on or prior to such date.


 


“Bank” means each entity (other than
the Borrower) listed on the signature pages hereof, each Assignee which
becomes a Bank pursuant to Section 9.6(c), and their respective
successors.  For purposes of this
Agreement, neither J.P. Morgan Securities, Inc., Citigroup Global Markets
Inc. nor Banc of America Securities LLC shall constitute a “Bank.”


 


“Bank Reply Period” has the meaning
set forth in Section 7.9.


 


2

















 


“Bankruptcy Code” means Title 11 of
the United States Code, entitled “Bankruptcy”, as amended from time to time,
and any successor statute or statutes.


 


“Base Euro-Currency Rate” means a rate
per annum equal to the rate for deposits in Dollars with maturities comparable
to the applicable Interest Period which appears on Reuters Page LIBOR1 as
of 11:00 a.m., London time, on the Quotation Date; provided, however,
if such rate does not appear on Reuters Page LIBOR1, or if Reuters Page LIBOR1
is no longer available, the “Base Euro-Currency Rate” applicable to a
particular Interest Period means a rate per annum equal to the rate at which
deposits in Dollars in an amount approximately equal to the applicable
Euro-Currency Loan(s), and with maturities comparable to the last day of the
Interest Period with respect to which such Base Euro-Currency Rate is
applicable, are offered in immediately available funds in the London interbank
market to the London office of the Administrative Agent by leading banks in the
London interbank market, at 11:00 a.m., London time on the Quotation Date.


 


“Base Rate” means, for any day, a rate
per annum equal to the highest of (i) the Prime Rate for such day, (ii) the
sum of 0.50% plus the Federal Funds Rate for such day and (iii) the
Euro-Currency Rate for a one month Interest Period as to which such day (or if
such day is not a Business Day, the immediately preceding Business Day) is the
Quotation Date plus 1.00%.  Each change
in the Base Rate shall become effective automatically as of the opening of
business on the date of such change in the Base Rate, without prior written
notice to the Borrower or the Banks.


 


“Base Rate Borrowing” means a
Borrowing in Dollars the interest on which is calculated by reference to the
Base Rate in accordance with the provisions of this Agreement.


 


“Base Rate Loan” means a Loan in
Dollars to be made by a Bank the interest on which is calculated by reference
to the Base Rate in accordance with the provisions of this Agreement.


 


“Borrower” has the meaning set forth
in the preamble hereto.


 


“Borrower’s Share” means the Borrower’s
direct or indirect share of an Investment Affiliate based upon the Borrower’s
percentage ownership (whether direct or indirect) of such Investment Affiliate.


 


“Borrowing” has the meaning set forth
in Section 1.3.


 


“Borrowing Base Certificate” means a
certificate substantially in the form of Exhibit A.


 


“Borrowing Base Value” means, as of
any date of determination:


 


(i)                    with
respect to any Performing Loan Asset, the book value of such Performing Loan
Asset, determined in accordance with GAAP;


 


(ii)                   with
respect to any Non-Performing Loan Asset, the book value of such Non-Performing
Loan Asset after giving effect to specific reserves 


 


3

















 


therefor established by the Borrower as reflected in its GAAP financial
statements;


 


(iii)                  with
respect to the equity interests in a Collateral LLC owning any Credit Tenant
Lease Assets, the undepreciated book value of such Credit Tenant Lease Assets,
determined in accordance with GAAP (reflecting any impairment taken by the
applicable Collateral LLC but without adding back any depreciation before the
most recent such impairment);


 


(iv)                  with
respect to the equity interests in a Collateral LLC owning Other Real Estate
Owned Assets, the book value of such Other Real Estate Owned Assets, determined
in accordance with GAAP (reflecting any impairment taken by the applicable
Collateral LLC); and


 


(v)                   with
respect to the equity interests in a Collateral LLC owning assets other than
Credit Tenant Lease Assets or Other Real Estate Owned Assets, the value of such
assets as determined in accordance with the foregoing clauses;


 


provided, however,
that to the extent the sum of (x) the Borrowing Base Value of
Non-Performing Loan Assets plus (y) the Borrowing Base Value of Other Real
Estate Owned Assets exceeds 20% of the total aggregate Borrowing Base Value of
the Collateral, such excess shall be disregarded in calculating the aggregate
Borrowing Base Value of the Collateral; provided that the Joint Lead
Arrangers may determine, in their sole and absolute discretion, to increase the
foregoing concentration limitation on Non-Performing Loan Assets and Other Real
Estate Owned Assets up to 30%, which concentration limitation may be further
increased solely with the consent of the Required Banks.  If at any time the Joint Lead Arrangers
determine to make any such exception with respect thereto, the Non-Performing
Loan Assets and Other Real Estate Owned Assets comprising such excess amount shall
be included in calculating the aggregate Borrowing Base Value.   Notwithstanding anything to the contrary
contained herein, there shall be no Borrowing Base Value attributable to (i) the
equity interests in any Collateral SPV or (ii) any assets owned by any
Collateral LLC other than any Loan Assets, Credit Tenant Lease Assets, Other
Real Estate Owned Assets or interests in Venture LLCs.


 


“Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized by law to close.


 


“Capital Leases” as applied to any
Person, means any lease of any property (whether real, personal or mixed) by
that Person as lessee which, in conformity with GAAP, is or should be accounted
for as a capital lease on the balance sheet of that Person.


 


“Cash or Cash Equivalents” means (a) cash;
(b) marketable direct obligations issued or unconditionally guaranteed by
the United States Government or issued by an agency thereof and backed by the
full faith and credit of the United States, in each case maturing within one (1) year
after the date of acquisition thereof; (c) marketable direct obligations
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within ninety (90) days after the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from any two
of S&P, 


 


4

















 


Moody’s or Fitch (or, if at any time no two
of the foregoing shall be rating such obligations, then from such other
nationally recognized rating services acceptable to the Administrative Agent); (d) commercial
paper (foreign and domestic) or master notes, other than commercial paper or
master notes issued by the Borrower or any of its Affiliates, and, at the time
of acquisition, having a long-term rating of at least A or the equivalent from
S&P, Moody’s or Fitch and having a short-term rating of at least A-1 and
P-1 from S&P and Moody’s, respectively (or, if at any time neither S&P
nor Moody’s shall be rating such obligations, then the highest rating from such
other nationally recognized rating services acceptable to the Administrative
Agent); (e) domestic and foreign certificates of deposit or domestic time
deposits or foreign deposits or bankers’ acceptances (foreign or domestic) in
Dollars that are issued by a bank (I) which has, at the time of
acquisition, a long-term rating of at least A or the equivalent from S&P,
Moody’s or Fitch and (II) if a domestic bank, which is a member of the
Federal Deposit Insurance Corporation; (f) overnight securities repurchase
agreements, or reverse repurchase agreements secured by any of the foregoing
types of securities or debt instruments, provided that the collateral
supporting such repurchase agreements shall have a value not less than 101% of
the principal amount of the repurchase agreement plus accrued interest; and (g) money
market funds invested in investments substantially all of which consist of the
items described in clauses (a) through (f) foregoing.


 


“Cash Flow Projections” means cash
flow projections of the Borrower and its Consolidated Subsidiaries
substantially in the form of Exhibit B.


 


“Closing Date” means the date on or
after the Effective Date on which the conditions set forth in Section 3.1
shall have been satisfied to the satisfaction of the Administrative Agent.


 


“Code” means the Internal Revenue Code
of 1986, as amended, and as it may be further amended from time to time, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form.


 


“Collateral” means all Eligible Assets
of the Collateral SPVs, now owned or hereafter acquired, upon which a Lien is
purported to be created by the Collateral Documents.


 


“Collateral Documents” means the
Security Agreement, the Collateral Trust Agreement, the Mortgages and all other
security documents hereafter delivered to the Administrative Agent and/or the
Collateral Trustee granting a Lien on any property of any Person to secure the
obligations and liabilities of the Borrower or any Guarantor under any Loan
Document.


 


“Collateral LLC” means any Subsidiary,
other than a Collateral SPV, of the Borrower that owns Loan Assets, Credit
Tenant Lease Assets, Other Real Estate Owned Assets or interests in Venture
LLCs, in each case, the equity interests in which are directly and wholly owned
by one or more Collateral SPVs.


 


“Collateral LLC Deposit Account” has
the meaning set forth in Section 5.8(a).


 


“Collateral Report” means the report
delivered pursuant to Section 5.1(l), substantially in the form of Exhibit D.


 


5
















 


 “Collateral
SPV” means iStar Tara Holdings LLC, iStar Tara LLC or any other special
purpose entity of the Borrower formed to own and hold Collateral, in each case
(other than with respect to iStar Tara Holdings LLC), the equity interests in
which are directly and wholly owned by iStar Tara Holdings LLC or iStar Tara
LLC.


 


“Collateral SPV Deposit Account” has
the meaning set forth in Section 5.8(a).


 


 “Collateral
Trust Agreement” means the Collateral Trust and Intercreditor Agreement,
dated as the date hereof, between iStar Tara Holdings LLC, iStar Tara LLC,
certain Subsidiaries of the Borrower, JPMorgan Chase Bank, N.A., as the first
priority agent, the 2011 second priority agent and the 2012 second priority
agent, and the Collateral Trustee, substantially in the form of Exhibit E,
as the same may be amended, modified or supplemented from time to time.


 


“Collateral Trustee” means The Bank of
New York Mellon Trust Company, N.A., as collateral trustee under the Collateral
Documents, or any successor collateral trustee pursuant to the terms of the
Collateral Documents.


 


“Commitment”
means with respect to each Bank, the amount set forth on Schedule 1.1A
next to the name of such Bank as its commitment to make Loans during the
Commitment Period (and, for each Bank which is an Assignee, the amount set
forth in the Transfer Supplement entered into pursuant to Section 9.6(c) as
the Assignee’s Commitment), as such amount may be reduced from time to time
pursuant to Section 2.9(c) or in connection with any assignment pursuant
to Section 9.6. The initial aggregate amount of the Banks’ Commitments is
$1,000,000,000.


 


“Commitment
Period” means the period from and including the Closing Date to and
including the date which is the earlier of (a) 364 days after the Closing
Date (or, if such date is not a Business Day, the Business Day immediately
preceding such date) and (b) the Maturity Date.


 


“Consolidated Subsidiary” means at any
date (i) any Collateral SPV, (ii) any Collateral LLC and (iii) any
other Subsidiary or other entity which is consolidated with the Borrower in
accordance with GAAP.


 


“Consolidated Tangible Net Worth”
means, at any time, the tangible net worth of the Borrower, on a consolidated
basis, determined in accordance with GAAP.


 


“Consulting Bank” has the meaning set
forth in Section 2.17(b).


 


“Contingent Obligation” as to any
Person means, without duplication, (i) any contingent obligation of such
Person required to be shown on such Person’s balance sheet in accordance with
GAAP which is not otherwise Indebtedness, and (ii) any obligation required
to be disclosed in accordance with GAAP in the footnotes to such Person’s
financial statements, guaranteeing partially or in whole any Non-Recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not 


 


6

















 


yet been called on or quantified, of such
Person or of any other Person.  The
amount of any Contingent Obligation described in clause (ii) shall be
deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the Net Present Value of the sum of
all payments required to be made thereunder (which in the case of an operating
income guaranty shall be deemed to be equal to the debt service for the note
secured thereby), through (i) in the case of an interest or interest and
principal guaranty, the stated date of maturity of the obligation (and
commencing on the date interest could first be payable thereunder), or (ii) in
the case of an operating income guaranty, the date through which such guaranty
will remain in effect, and (b) with respect to all guarantees not covered
by the preceding clause (a), an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guaranty is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
recorded on the balance sheet and on the footnotes to the most recent financial
statements of the Borrower required to be delivered pursuant to Section 5.1
hereof. Notwithstanding anything contained herein to the contrary, guarantees
of completion shall not be deemed to be Contingent Obligations unless and until
a claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim.  Subject
to the preceding sentence, (i) in the case of a joint and several guaranty
given by such Person and another Person (but only to the extent such guaranty
is recourse, directly or indirectly to the Borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that
such other Person has delivered Cash or Cash Equivalents to secure all or any
part of such Person’s guaranteed obligations, (ii) in the case of joint
and several guarantees given by a Person in whom the Borrower owns an interest
(which guarantees are non-recourse to the Borrower), to the extent the
guarantees, in the aggregate, exceed 15% of total asset value, the amount which
is the lesser of (x) the amount in excess of 15% or (y) the amount of
the Borrower’s interest therein shall be deemed to be a Contingent Obligation
of the Borrower, and (iii) in the case of a guaranty (whether or not joint
and several) of an obligation otherwise constituting Indebtedness of such
Person, the amount of such guaranty shall be deemed to be only that amount in
excess of the amount of the obligation constituting Indebtedness of such
Person. All matters constituting “Contingent Obligations” shall be calculated
without duplication.


 


“Coverage Ratio” means at any time the
ratio of (A) the aggregate Borrowing Base Value of the Collateral in which
the Collateral Trustee has a first priority, perfected security interest (other
than any Permitted Liens described in clause (a), (b) or (f) of the
definition thereof set forth herein) to (B) the sum of (i) the
aggregate principal amount of all loans and the aggregate undrawn amount of all
letters of credit outstanding and unpaid letter of credit reimbursement
obligations under the Secured Bank Facilities, (ii) the aggregate
principal amount of Second Priority Secured Exchange Notes outstanding (if
any), and (iii) the aggregate amount of all Discounts realized by the
Borrower prior to such time; provided  that for purposes of
calculating the Coverage Ratio, the Borrower may use Borrowing Base Values as
of the end of the most recently ended Fiscal Quarter, with adjustments for (x) any
payments or prepayments of principal of the Loan Assets, (y) the cash
proceeds of any sales or other realizations on account of Credit Tenant Lease
Assets and Other Real Estate Owned Assets included, or effectively included, in
the Collateral and (z) any withdrawals from, additions to or increased
fundings in respect of, the Collateral.


 


7

















 


“Coverage Test” has the meaning set
forth in Section 5.17.


 


“Credit Rating” means a rating
assigned by a Rating Agency to the Borrower’s senior unsecured long term
indebtedness.


 


“Credit Tenant Lease Assets” means
properties substantially all of which are either (i) leased to a
governmental entity, (ii) leased to a tenant (or guaranteed by a Person)
with an Investment Grade Rating, (iii) properties which, if unavailable to
a tenant, would materially impair the continued operation of such tenant,
including without limitation, headquarters facilities, distribution centers,
manufacturing facilities, or pools or classes of multiple properties leased
under blanket leases or (iv) any other assets that the Borrower has
classified as a credit tenant lease consistent with past practice. In addition, “Credit Tenant Lease
Assets” will be leased to such corporate users primarily on a triple net basis,
but may also be leased on a double net, gross lease with expense stop, or
bond-type basis.


 


“DB Master Repurchase Agreement” means
the Amended and Restated Master Repurchase Agreement dated as of January 9,
2006, as amended, by and among iStar DB Seller, LLC, as seller, Deutsche Bank
AG, Cayman Islands Branch, as buyer, and the Borrower, as sponsor.


 


“Debt Service” means, for any period
and without duplication, Interest Expense for such period on all Indebtedness
of the Borrower on a consolidated basis.


 


“Default” means any condition or event
which with the giving of notice or lapse of time or both would, unless cured or
waived, become an Event of Default.


 


“Default Rate” has the meaning set
forth in Section 2.6(c).


 


“Defaulting Bank” means any Bank, as
reasonably determined by the Administrative Agent, that has (a) failed to
fund any portion of its Loans or loans under either Second Priority Bank
Facility within three Business Days of the date required to be funded by it
hereunder or thereunder, as applicable, unless the subject of a good faith
dispute, (b) notified the Borrower, the Administrative Agent, or any Bank,
or as applicable, the administrative agent or any lender under either New
Credit Agreement, in writing, or made a public statement, that it does not
intend or is not able to comply with any of its funding obligations under this
Agreement or under either New Credit Agreement, (c) failed, within three
Business Days after written request by the Administrative Agent, or as applicable,
the administrative agent under either New Credit Agreement, to confirm that it
will comply with the terms of this Agreement or either New Credit Agreement
relating to its obligations to fund prospective Loans or loans under either New
Credit Agreement, or (d) otherwise failed to pay over to the
Administrative Agent or any other Bank any other amount required to be paid by
it hereunder within three Business Days of the date when due, unless the
subject of a good faith dispute, provided, however, in each case, at any time such failure is remedied
or notice retracted, such Bank shall no longer be a Defaulting Bank.


 


“Deposit Account Control
Agreement” means, individually and collectively, each “Deposit Account
Control Agreement” referred to in the Security Agreement.


 


8

















 


“Discount” means, with respect to any
prepayment of loans outstanding under the Secured Bank Facilities or any
repurchase of Second Priority Secured Exchange Notes, the excess of (x) the
par principal amount of such loans prepaid or such Second Priority Secured
Exchange Notes repurchased, as applicable, over (y) the discounted
prepayment amount or purchase price, as applicable, with respect to such
prepayment or repurchase.


 


“Dollars” and “$” means the
lawful money of the United States.


 


“Domestic Lending Office” means, as to
each Bank, its office located at its address in the United States set forth in
its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice to the
Borrower and the Administrative Agent.


 


“EBITDA” means, for any period on a
consolidated basis in accordance with GAAP (i) Net Income for such period,
plus (ii) depreciation, depletion and amortization expense and other
non-cash items deducted in the calculation of Net Income for such period, plus (iii) Interest
Expense deducted in the calculation of Net Income for such period, plus (iv) dividends
and distributions from the Borrower’s Investment Affiliates (exclusive of
returns of equity), minus (v) income from any Investment Affiliates, minus
(vi) gains and losses from discontinued operations, all of the foregoing
without duplication. Notwithstanding the foregoing, however, in the case of any
asset that is less than 100% owned, directly or indirectly, by the Borrower,
only the Borrower’s pro rata share of the items set forth in clauses (i), (ii),
(iii) and (vi) shall be included in EBITDA.


 


“Effective Date” means the date this
Agreement becomes effective in accordance with Section 9.8.


 


“Eligible Assets” means Performing
Loan Assets, Non-Performing Loan Assets and the equity interests in Collateral
LLCs.


 


“Environmental Affiliate” means any
partnership, joint venture, trust or corporation in which an equity interest is
owned directly or indirectly by the Borrower and, as a result of the ownership
of such equity interest, the Borrower may have recourse liability for
Environmental Claims against such partnership, joint venture, trust or
corporation (or the property thereof).


 


“Environmental Claim” means, with
respect to any Person, any notice, claim, demand or similar communication
(written or oral) by any other Person alleging potential liability of such
Person for investigatory costs, cleanup costs, governmental response costs,
natural resources damage, property damages, personal injuries, fines or
penalties arising out of, based on or resulting from (i) the presence, or
release into the environment, of any Materials of Environmental Concern at any
location, whether or not owned by such Person or (ii) circumstances
forming the basis of any violation, or alleged violation, of any Environmental
Law, in each case (with respect to both (i) and (ii) above) as to
which there is a reasonable possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material
Adverse Effect on the Borrower.


 


9

















 


“Environmental Laws” means any and all
federal, state, and local statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, licenses, agreements and other governmental restrictions
relating to the environment, the effect of the environment on human health or
to emissions, discharges or releases of Materials of Environmental Concern into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern or the cleanup or other remediation thereof.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.


 


“ERISA Group” means the Borrower, any
Subsidiary, and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control and all
members of an “affiliated service group” which, together with the Borrower, or
any Subsidiary, are treated as a single employer under Section 414 of the
Code or Section 4001(b)(1) of ERISA.


 


“Euro-Currency Borrowing” has the
meaning set forth in Section 1.3.


 


“Euro-Currency Business Day” means any
Business Day on which banks are open for dealings in deposits in Dollars in the
London interbank market and any day on which commercial banks are open for
foreign exchange business in London.


 


“Euro-Currency Lending Office” means,
as to each Bank, its office, branch or affiliate located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Currency Lending Office) or such other office, branch
or affiliate of such Bank as it may hereafter designate as its Euro-Currency
Lending Office by notice to the Borrower and the Administrative Agent.


 


“Euro-Currency Loan” means a Loan in
Dollars, the interest on which is calculated by reference to the Euro-Currency
Rate, made or to be made by a Bank in accordance with the applicable Notice of
Borrowing.


 


“Euro-Currency Rate” means with
respect to any Interest Period applicable to a Euro-Currency Loan, an interest
rate per annum obtained by dividing (i) the Base Euro-Currency Rate
applicable to that Interest Period by (ii) a percentage equal to 100% minus
the Euro-Currency Reserve Percentage in effect.


 


“Euro-Currency Reserve Percentage”
means, for any day, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Federal Reserve Board (or any successor)
under Regulation D, as Regulation D may be amended, modified or supplemented,
for determining the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits exceeding $5,000,000,000
in respect of “Eurocurrency liabilities” (or in respect of any other category
of liabilities which includes deposits by reference to which the interest rate
on Euro-Currency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents).


 


10

















 


“Event of Default” has the meaning set
forth in Section 6.1.


 


“Exchange Option Termination” means
the termination of the Borrower’s option to issue Second Priority Exchange
Notes which shall result from the delivery, at any time, by the Borrower of
written notice to the Administrative Agent of its determination not to issue
any, or any additional, Second Priority Secured Exchange Notes.


 


“Existing Credit Agreements” means the
Existing 2006 Credit Agreement and the Existing 2007 Credit Agreement.


 


 “Existing
2006 Credit Agreement” means the Amended and Restated Revolving Credit
Agreement dated as of June 28, 2006, as amended, by and among the
Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A. as
administrative agent.


 


“Existing 2006 Credit Agreement Amendment
and Commitment Transfer Agreement” means the Amendment and Commitment
Transfer Agreement in respect of the Existing 2006 Credit Agreement dated as of
March 13, 2009, among the Borrower and JPMorgan Chase Bank, N.A., as
administrative agent, and consented to by the Required Banks (as defined in the
Existing 2006 Credit Agreement).


 


“Existing 2007 Credit Agreement” means
the Revolving Credit Agreement, dated as of June 26, 2007, as amended, by
and among the Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A.
as administrative agent.


 


“Existing 2007 Credit Agreement Amendment
and Commitment Transfer Agreement” means the Amendment and Commitment
Transfer Agreement in respect of the Existing 2007 Credit Agreement dated as of
March 13, 2009 among the Borrower and JPMorgan Chase Bank, N.A., as administrative
agent, and consented to by the Required Banks (as defined in the Existing 2007
Credit Agreement).


 


“Existing 2008 Credit Agreement” means
the 364-Day Term Loan Agreement dated as of March 10, 2008, as amended,
among iStar Corporate Collateral LLC, as borrower, the Borrower, as guarantor,
JPMorgan Chase Bank, N.A., as administrative agent, and the other parties
thereto.


 


“Existing 2008 Credit Agreement Amendments”
means the (i) Amendment Agreement in respect of the Existing 2008 Credit
Agreement dated as of February 23, 2009 and (ii) the Second Amendment
Agreement in respect of the Existing 2008 Credit Agreement to be entered into
on or prior to March 13, 2009, in each case among iStar Corporate
Collateral LLC, the Borrower, the lenders party thereto and JPMorgan Chase
Bank, N.A., as administrative agent.


 


“Federal Funds Rate” means, for any
day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th
of 1%) equal to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding 


 


11

















 


Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent on such day for such
transactions as determined by the Administrative Agent.


 


“Federal Reserve Board” means the
Board of Governors of the Federal Reserve System as constituted from time to
time.


 


“Fiscal Quarter” means a fiscal
quarter of a Fiscal Year.


 


“Fiscal Year” means the fiscal year of
the Borrower.


 


“Fitch” means Fitch Investors Services, Inc.,
or any successor thereto.


 


“Fixed Charge Coverage Ratio” means at
any time the ratio of EBITDA to Fixed Charges, for the then most recently
completed four (4) consecutive Fiscal Quarters.


 


“Fixed Charge Coverage Ratio Payment Event”
means any time and for so long as the Fixed Charge Coverage Ratio is less than
1.25 to 1.00.


 


 “Fixed
Charges” for any Fiscal Quarter period means the sum of (i) Debt
Service for such period, and (ii) dividends on preferred units payable by
the Borrower for such period.  If any of
the foregoing Debt Service is with respect to Indebtedness that is subject to
an interest rate cap agreement purchased by the Borrower or a Consolidated
Subsidiary, the interest rate shall be assumed to be the lower of the actual
interest payable on such Indebtedness or the capped rate of such interest rate
cap agreement.


 


“Fremont Assets” means the assets
subject to the Fremont Participation Agreement.


 


“Fremont Participation Agreement”
means the Loan Participation Agreement, dated as of May 21, 2007,
originally by and among Fremont Investment & Loan and iStar FM Loans
LLC, as amended, supplemented or otherwise modified from time to time.


 


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


 


“GE Credit Tenant Lease Facility”
means collectively, (a) the loans made to American Financial Exchange LLC
pursuant to a certain Loan Agreement dated as of June 26, 2008 among American
Financial Exchange LLC, the lenders party thereto and General Electric Capital
Corporation, as Administrative Agent (as amended from time to time) and (b) the
loans made to iStar CTL Finance LLC pursuant to a certain Loan Agreement dated
as of April 30, 2008 among iStar CTL Finance LLC, the lenders party
thereto and General Electric Capital 


 


12

















 


Corporation, as Administrative Agent (as
amended from time to time), as such Loan Agreements have been or are amended
from time to time.


 


“Grantor” means each of the Collateral
SPVs that is a party to the Security Agreement.


 


“Group of Loans” means, at any time, a
group of Loans consisting of (i) all Loans which are Base Rate Loans at
such time, or (ii) all Euro-Currency Loans having the same Interest Period
at such time; provided that, if a Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.2 or Section 8.5,
such Loan shall be included in the same Group or Groups of Loans from time to
time as it would have been in if it had not been so converted or made.


 


“Guarantee Agreement” means the
Guarantee Agreement dated as of the date hereof entered into by each Guarantor,
substantially in the form of Exhibit F, as the same may be amended,
modified or supplemented from time to time.


 


“Guarantors” means each of the
Collateral SPVs and Collateral LLCs that, in each case, is party to the
Guarantee Agreement and other such guarantors as may from time to time be
added, by a supplement to the Guarantee Agreement in a form reasonably
satisfactory to the Administrative Agent.


 


“Indebtedness” as applied to any
Person, means, at any time, without duplication, (a) all indebtedness,
obligations or other liabilities of such Person (whether consolidated or
representing the proportionate interest in any other Person) (i) for
borrowed money (including construction loans) or evidenced by debt securities,
debentures, acceptances, notes or other similar instruments, and any accrued
interest, fees and charges relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any stock, (iii) with
respect to letters of credit issued for such Person’s account, (iv) to pay
the deferred purchase price of property or services, except accounts payable
and accrued expenses arising in the ordinary course of business, (v) in
respect of Capital Leases, (vi) which are Contingent Obligations or (vii) under
warranties and indemnities; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are
assumed by such Person, all as of such time (provided that the value of
such indebtedness, obligations or liabilities shall be limited to the lesser of
(x) the amount of such indebtedness, obligations or liabilities assumed by
such Person and (y) the undepreciated book value of the property subject
to such Lien, determined in accordance with GAAP, and less any impairment
charge, provided, further, however, that if the amount of such
indebtedness, obligations or liabilities are greater than 90% of such
undepreciated book value of the encumbered property when assumed or incurred,
then, if the Borrower intends to apply the provisions of this proviso thereto,
the Borrower shall deliver an appraisal prepared by an independent appraiser to
the Administrative Agent with respect to the value of the applicable property);
(c) all indebtedness, obligations or other liabilities of such Person in
respect of Interest Rate Contracts and foreign exchange contracts, net of
liabilities owed to such Person by the counterparties thereon; (d) all
preferred stock subject (upon the occurrence of any contingency or 


 


13

















 


otherwise) to mandatory redemption; and (e) all
contingent contractual obligations with respect to any of the foregoing.


 


“Indemnitee” has the meaning set forth
in Section 9.3(b).


 


“Interest Expense” means, for any
period and without duplication, total interest expense, whether paid, accrued
or capitalized, of the Borrower, on a consolidated basis determined in
accordance with GAAP.


 


“Interest Period” means, with respect
to each Euro-Currency Borrowing, the period commencing on the date of such
Borrowing specified in the Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending 1, 2 or 3 months thereafter
as the Borrower may elect in the applicable Notice of Borrowing or Notice of
Interest Rate Election; provided, that:


 


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


 


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


 


(c)  no Interest Period
may end later than the Maturity Date.


 


“Interest Rate Contracts” means,
collectively, interest rate swap, collar, cap or similar agreements providing
interest rate protection.


 


“Investment Affiliate” means any joint
venture or Subsidiary, whose financial results are not consolidated under GAAP
with the financial results of the Borrower on the consolidated financial
statements of the Borrower.


 


“Investment Grade Rating” means a
rating for a Person’s senior long-term unsecured debt of BBB- or better from
S&P or of Baa3 or better from Moody’s. In the event that the Borrower
receives Credit Ratings from S&P and Moody’s, and such Credit Ratings are
not equivalent, the lower of such two (2) Credit Ratings shall be used to
determine whether an Investment Grade Rating was achieved.


 


“Joint Bookrunners” means J.P. Morgan
Securities Inc., Banc of America Securities LLC and Citigroup Global Markets
Inc., in their respective capacities as Joint Bookrunners hereunder.


 


“Joint Lead Arrangers” means J.P. Morgan
Securities Inc., Banc of America Securities LLC and Citigroup Global Markets
Inc., in their respective capacities as Joint Lead Arrangers hereunder.


 


14

















 


“Junior Priority Secured Exchange Notes”
means Secured Exchange Notes which are secured by a third or more junior
priority security interest in the Collateral.


 


“Lien” means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind, or any other type of preferential arrangement, in each case that has
the effect of creating a security interest in respect of such asset. For the
purposes of this Agreement, the Borrower or any Consolidated Subsidiary shall
be deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.


 


“Listed Eligible Assets” means the
Eligible Assets included on the ranked list set forth on Schedule 1.1B, as such
Schedule may be updated and as such list may be re-ranked or otherwise modified
in accordance with the terms of this Agreement.


 


“Listed Eligible Asset Payment Event”
means after a Principal Collateral Payment has been made in respect of certain
Collateral, any time and for so long as the aggregate Borrowing Base Value of
all Listed Eligible Assets is not sufficient to replace the Collateral in
respect of which such Principal Collateral Payment has been made for purposes
of compliance with the applicable Coverage Test.


 


“Loan” means a Base Rate Loan or a
Euro-Currency Loan, and “Loans” means Base Rate Loans or Euro-Currency
Loans or any combination of the foregoing.


 


“Loan Assets” means senior or
subordinated loans that may be either fixed or variable rate, including,
without limitation, first mortgages, second mortgages, mezzanine loans,
repurchase agreements, participations in loans, interim facilities, corporate
loans, debt securities, “B” notes and collateralized mortgage-backed
securities.


 


“Loan Documents” means this Agreement,
any Note, the Guarantee Agreement and each Collateral Document.


 


 “Loan
Parties” means the Borrower and each Guarantor.


 


“Loan Reduction Payment Event” means
any time and for so long as the aggregate principal amount of Loans outstanding
exceeds (i) at any time on or after September 30, 2010 but prior to March 31,
2011, $500,000,000 or (ii) at any time on or after March 31, 2011,
$0.


 


“Material Adverse Effect” means an
effect resulting from any circumstance or event or series of circumstances or
events, of whatever nature (but excluding general economic conditions), which
does or could reasonably be expected to, materially and adversely impair (i) the
ability of the Borrower and its Consolidated Subsidiaries, taken as a whole, to
perform their respective obligations under the Loan Documents, or (ii) the
ability of the Administrative Agent or the Banks to enforce the Loan Documents.


 


“Material Default” means (i) any
Default resulting from the Borrower’s failure to pay any principal of any Loan
hereunder, including any mandatory prepayment hereunder, or 


 


15

















 


any interest due on any Loan or any fees or
other amount payable hereunder, (ii) any Default resulting from the
Borrower’s failure to be in compliance with any covenant contained in Section 5.1(a),
(b), (c), (d)(i) (provided that the officer of the Borrower that,
in such case, has obtained knowledge of the applicable Default or Event of
Default is any of the president, chief executive officer, chief financial
officer or chief operating officer of the Borrower or any officer performing
the customary duties of any such position), (k), (l), 5.8, 5.10, 5.14 or 5.17,
including on a pro forma basis after giving effect to any relevant transaction
or (iii) any other material Default as to which the Borrower shall have
received written notice.


 


“Materials of Environmental Concern”
means and includes pollutants, contaminants, hazardous wastes, toxic and hazardous
substances, asbestos, lead, petroleum and petroleum by-products.


 


“Maturity Date” means the date when
all of the Obligations hereunder shall be due and payable which shall be June 26,
2012, unless otherwise accelerated pursuant to the terms hereof.


 


“Moody’s” means Moody’s Investors
Services, Inc. or any successor thereto.


 


“Mortgage-Eligible Assets” means
Credit Tenant Lease Assets owned by Pledged Collateral LLCs other than the
Mortgage-Exempt Assets.


 


“Mortgage-Exempt Asset” means (i) at
any time, any Credit Tenant Lease Asset owned by (a) iStar Bowling Centers
I LP, (b) iStar Bowling Centers II LP or (c) any Venture LLC, and (ii) each
of the following Credit Tenant Lease Assets commonly known as (a) Sky
Chefs I, (b) Sky Chefs II, (c) Fresenius USA or (d) Cequent
Towing Products, in each case, unless the binding contract, as in effect on the
Closing Date, for a Third Party Sale of its owned real property is terminated
prior to consummation; provided, however, that the Borrower may,
at any time, by written notice to the Joint Lead Arrangers, remove any such
Credit Tenant Lease Asset from the list of Mortgage-Exempt Assets and
thereafter the related real property shall be eligible to become a Mortgaged
Property in accordance with Section 2.18.


 


“Mortgaged Properties” means the real
properties as to which the Collateral Trustee for the benefit of the Secured
Parties shall be granted a Lien pursuant to the Mortgages as required by and in
accordance with Section 2.18.


 


“Mortgages” means each of the real
property mortgages and deeds of trust made by any Pledged Collateral LLC in
favor of, or for the benefit of, the Collateral Trustee, for the benefit of the
Secured Parties, substantially in the form of Exhibit J (with such changes
thereto as shall be advisable under the law of the jurisdiction in which such
real property mortgage or deed of trust is to be recorded to the extent such
changes do not increase the obligations of any Loan Party and do not decrease
the rights of any Loan Party or otherwise modify the substantive and remedial
provisions of the Mortgages).


 


 “Multiemployer
Plan” means at any time an employee pension benefit plan within the meaning
of Section 4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make contributions or has at any
time after September 25, 1980 made contributions or has been required to
make contributions (for these 


 


16

















 


purposes any Person which ceased to be a
member of the ERISA Group after September 25, 1980 will be treated as a
member of the ERISA Group).


 


“Net Income” means, for any period,
net income (or loss) of the Borrower for such period, calculated on a
consolidated basis in conformity with GAAP.


 


“Net Present Value” means, as to a
specified or ascertainable Dollar amount, the present value, as of the date of
calculation of any such amount using a discount rate equal to the Base Rate in
effect as of the date of such calculation.


 


“Net Worth” means, at any time, the
sum of the Borrower’s (i) book equity, (ii) accumulated depreciation,
(iii) accumulated depletion, and (iv) reserves for loan losses, all
in accordance with GAAP and, in the case of items (ii), (iii) and (iv) hereof,
exclusive of amounts attributable to Investment Affiliates.


 


“New Credit Agreements” means (i) the
2011 Second Priority Credit Agreement, dated as of the date hereof, as amended,
supplemented or otherwise modified from time to time, by and among the
Borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A. as
administrative agent, and (ii) the 2012 Second Priority Credit Agreement,
dated as of the date hereof, as amended, supplemented or otherwise modified
from time to time, by and among the Borrower, the lenders party thereto and
JPMorgan Chase Bank, N.A. as administrative agent.


 


“Non-Excluded Taxes” has the meaning
set forth in Section 8.4.


 


“Non-Performing Loan Assets” means any
Loan Asset classified as non-performing in accordance with the Borrower’s
internal procedures, consistent with past practice.


 


“Non-Recourse Indebtedness” means
Indebtedness with respect to which recourse for payment is limited to (i) specific
assets related to a particular Property or group of Properties encumbered by a
Lien securing such Indebtedness or (ii) for all purposes other than Section 5.14
or Section 6.1(e) hereof, any Subsidiary (provided that if a
Subsidiary is a partnership, there is no recourse to the Borrower as a general
partner of such partnership); provided that if any portion of
Indebtedness is so limited, then such portion shall constitute Non-Recourse
Indebtedness and only the remainder of such Indebtedness shall constitute
Recourse Debt; provided, further, however, that personal
recourse of the Borrower for any such Indebtedness for fraud, misrepresentation,
misapplication of cash, waste, Environmental Claims and liabilities and other
circumstances customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements in
non-recourse financing of real estate shall not, by itself, prevent such
Indebtedness from being characterized as Non-Recourse Indebtedness.


 


“Notes” means the promissory notes of
the Borrower, substantially in the form of Exhibit G hereto, evidencing
the obligation of the Borrower to repay the Loans, and “Note” means any one of
such promissory notes issued hereunder.


 


“Notice of Borrowing” means a notice
from the Borrower in accordance with Section 2.2.


 


17
















 


“Notice of Interest Rate Election” has
the meaning set forth in Section 2.5.


 


“Obligations” means all obligations,
liabilities, indemnity obligations and Indebtedness of every nature of the
Borrower, from time to time owing to the Administrative Agent, any other Agent
or any Bank under or in connection with this Agreement or any other Loan
Document.


 


“Other Real Estate Owned Assets” means
properties acquired by foreclosure or by deed-in-lieu of foreclosure in partial
or total satisfaction of Non-Performing Loan Assets.


 


“Other Taxes” has the meaning set
forth in Section 8.4.


 


“Outstanding Secured Exposure” means,
on any date of determination, the aggregate principal amount of all loans and
reimbursement obligations and the aggregate undrawn amount of all letters of
credit outstanding under the Secured Bank Facilities on such date.


 


“Parent” means, with respect to any
Bank, any Person controlling such Bank.


 


“Participant” has the meaning set
forth in Section 9.6(b).


 


“Patriot Act” has the meaning set
forth in Section 9.15.


 


“PBGC” means the Pension Benefit
Guaranty Corporation or any entity succeeding to any or all of its functions
under ERISA.


 


“Performing Loan Assets” means any
Loan Assets other than Non-Performing Loan Assets.


 


“Permitted Liens” means:


 


(a)  Liens for Taxes,
assessments or other governmental charges not yet due and payable or which are
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted in accordance with the terms hereof;


 


(b)  statutory liens of
carriers, warehousemen, mechanics, materialmen and other similar liens imposed
by law, which are incurred in the ordinary course of business for sums not more
than ninety (90) days delinquent or which are being contested in good faith in
accordance with the terms hereof;


 


(c)  deposits or pledges
to secure the payment of worker’s compensation, unemployment insurance and
other social security or similar legislation or to secure liabilities to
insurance carriers or reimbursement and indemnity obligations in respect of
surety or appeal bonds;


 


(d)  utility deposits and
other deposits or pledges to secure the performance of bids, trade contracts
(other than for borrowed money), leases, purchase contracts, construction
contracts, governmental contracts, statutory obligations, surety bonds, 


 


18

















 


performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(e)  Liens for purchase
money obligations for equipment (or Liens to secure Indebtedness incurred
within 90 days after the purchase of any equipment to pay all or a portion of
the purchase price thereof or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of any such equipment, or extensions,
renewals, or replacements of any of the foregoing for the same or lesser
amount); provided that (i) the Indebtedness secured by any such
Lien does not exceed the purchase price of such equipment, (ii) any such
Lien encumbers only the asset so purchased and the proceeds upon sale,
disposition, loss or destruction thereof, and (iii) such Lien, after
giving effect to the Indebtedness secured thereby, does not give rise to an
Event of Default;


 


(f)  easements (including
reciprocal easement agreements and utility agreements), rights-of-way, zoning
restrictions, other covenants, reservations, encroachments, leases, licenses or
similar charges or encumbrances (whether or not recorded) and all other items
listed on any Schedule B to the Borrower’s owner’s title insurance policies,
except in connection with any Indebtedness, for any of the Borrower’s Real
Property Assets, so long as the foregoing do not interfere in any material
respect with the use or ordinary conduct of the business of the Borrower and do
not diminish in any material respect the value of the Property to which such
Permitted Lien is attached;


 


(g)  (I) Liens and
judgments which have been or will be bonded (and the Lien on any cash or
securities serving as security for such bond) or released of record within
forty-five (45) days after the date such Lien or judgment is entered or filed
against the Borrower, or any Subsidiary, or (II) Liens which are being
contested in good faith by appropriate proceedings for review and in respect of
which there shall have been secured a subsisting stay of execution pending such
appeal or proceedings and as to which the subject asset is not at risk of
forfeiture;


 


(h)  [Reserved];


 


(i)  [Reserved];


 


(j)  Liens not otherwise
described but existing as of the Closing Date and listed on Schedule 1.1D;


 


(k) Liens in favor of any
Collateral SPV; and


 


(l)  Liens created
pursuant to the Collateral Documents in favor of the Collateral Trustee for the
benefit of the Agents and the Banks.


 


“Permitted Note Repurchases” means
repurchases of (i) public notes of the Borrower outstanding as of the
Closing Date or (ii) Secured Exchange Notes, in each case, maturing after June 26,
2012, in an aggregate purchase price with respect to clauses (i) and (ii) above
not to exceed, when taken together with the purchase price for all Permitted
Share Repurchases consummated on or after the Closing Date, $350,000,000.


 


19

















 


“Permitted Share Repurchases” means
repurchases of shares of common stock of the Borrower in a purchase price not
to exceed the lesser of (i) $100,000,000 and (ii) $350,000,000 minus
the purchase price for all Permitted Note Repurchases consummated prior to the
date of determination; provided that not more than $50,000,000 of such
repurchases may be made prior to December 31, 2010.


 


“Person” means an individual, a
corporation, a partnership, a limited liability company, an association, a
trust or any other entity or organization, including, without limitation, a
government or political subdivision or an agency or instrumentality thereof.


 


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


 


“Pledged Collateral List” means the
ranked list of Collateral set forth on Schedule 1.1C, as such Schedule may be
updated and as such list may be re-ranked or otherwise modified in accordance
with the terms of this Agreement.


 


“Pledged Collateral LLC” means a
Collateral LLC, the equity interests in which constitute Collateral.


 


“Prime Rate” means the rate of
interest publicly announced by the Administrative Agent from time to time as
its “prime rate”.


 


“Principal Collateral Payments” means (i) any
payments or prepayments of principal on account of Loan Assets and (ii) the
net cash proceeds of any sales or other realizations on account of Credit
Tenant Lease Assets, Other Real Estate Owned Assets or other assets, in each
case with respect to clauses (i) and (ii) above, to the extent such
assets are included in the Collateral or are owned by a Pledged Collateral LLC.


 


“Principal Collateral Payment Event”
means any Loan Reduction Payment Event, Fixed Charge Coverage Ratio Payment
Event or any Listed Eligible Asset Payment Event.


 


“Pro Rata Share” means, for any Bank
at any time, a fraction (expressed as a percentage), the numerator of which shall
be the amount of such Bank’s Commitment and the denominator of which shall be
the aggregate amount of all of the Banks’ Commitments, as adjusted from time to
time in accordance with the provisions of this Agreement (or following the
termination of the Commitments, the numerator of which shall be the amount of
such Bank’s Loans outstanding and the denominator of which shall be the
aggregate amount of all of the Banks’ Loans outstanding).


 


“Property” means, with respect to any
Person, any real or personal property, building, facility, structure, equipment
or unit, or other asset owned by such Person.


 


20

















 


“Qualified Institution” means (i) a
Bank or any Affiliate thereof; (ii) a commercial bank having total assets
in excess of $5,000,000,000; (iii) the central bank of any country which
is a member of the Organization for Economic Cooperation and Development; or (iv) a
finance company or other financial institution (other than the Borrower or its
Affiliates) reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $500,000,000 or is otherwise reasonably acceptable to the
Administrative Agent; provided that in no event shall any competitor of
the Borrower or any Subsidiary qualify as a “Qualified Institution” if the
Borrower reasonably determines that such entity constitutes such a
competitor.  Notwithstanding the
foregoing, however, in no event shall any commercial bank or any wholly-owned
Subsidiary thereof, savings and loan institution, investment bank or
broker/dealer be deemed to be a competitor of the Borrower.


 


“Quotation Date” means, in relation to
any Interest Period for which an interest rate is to be determined, two
Euro-Currency Business Days before the first day of such Interest Period.


 


“Rating Agencies” means, collectively,
S&P and Moody’s.


 


“Real Property Assets” means as to any
Person as of any time, the real property assets (including, without limitation,
interests in participating mortgages in which such Person’s interest therein is
characterized as equity according to GAAP) owned directly or indirectly by such
Person at such time.


 


“Recourse Debt” means Indebtedness
other than Non-Recourse Indebtedness.


 


“Regulation U” means Regulation U of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.


 


“REIT” means a real estate investment
trust, as defined under Section 856 of the Code.


 


“Required Banks” means at any time Banks
having or holding more than 50% of the sum of (i) the aggregate amount of
all Available Commitments hereunder and (ii) the aggregate unpaid
principal amount of the Loans then outstanding hereunder; provided that the
Available Commitments of, and Loans held by, any Defaulting Bank shall be
excluded for purposes of making a determination of Required Banks.


 


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


 


“Second Priority Bank Facilities”
means the loans, letters of credit and commitments documented under each of the
New Credit Agreements.


 


“Second Priority Secured Exchange Notes”
means Secured Exchange Notes which are secured ratably with the Second Priority
Bank Facilities (if any) by a second priority security interest in the
Collateral, subject only to the first priority Lien granted pursuant to the
Security Agreement.


 


21

















 


“Secured Bank Facilities” means the
Second Priority Bank Facilities and the Loans and Commitments pursuant to this
Agreement.


 


“Secured Debt” means Indebtedness, the
payment of which is secured by a Lien (other than a Permitted Lien listed in
clauses (a) - (g) of the definition thereof set forth herein) on any
Property owned or leased by the Borrower or any Consolidated Subsidiary (it
being understood that Indebtedness of any Subsidiary (other than a Guarantor)
that is material to the value of such Subsidiary’s assets shall be Secured
Debt).


 


“Secured Exchange Notes” means notes
(which may be in the form of bonds or loans) issued by the Borrower after the
Closing Date which (i) are issued in exchange for or to refinance public
notes issued by the Borrower prior to the Closing Date, (ii) are secured
by the Collateral as permitted under and in accordance with the Loan Documents,
(iii) if the public notes for which they are exchanged or which they
refinance pursuant to clause (i) above mature prior to the Termination
Date, have a maturity date on or after the maturity date for such existing
public notes and (iv) shall not have more restrictive covenants and terms
than those applicable to the Secured Bank Facilities, taken as a whole.


 


“Secured Parties” has the meaning set
forth in the Collateral Trust Agreement.


 


“Securities” means any stock,
partnership interests, shares, shares of beneficial interest, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities,” or any certificates of interest,
shares, or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, and shall include Indebtedness which would be required to be
included on the liabilities side of the balance sheet of the Borrower in
accordance with GAAP, but shall not include any Cash or Cash Equivalents or any
evidence of the Obligations.


 


“Securities Account Control Agreement”
means, individually and collectively, each “Securities Account Control
Agreement” referred to in the Security Agreement.


 


“Security Agreement” means the
Security Agreement dated the date hereof between iStar Tara Holdings LLC, iStar
Tara LLC, certain Subsidiaries of the Borrower to be agreed and the Collateral
Trustee, substantially in the form of Exhibit C, as the same may be
amended, modified or supplemented from time to time.


 


“Solvent” means, with respect to any
Person, that the fair saleable value of such Person’s assets exceeds the
Indebtedness of such Person.


 


“Special Fremont Reranking” has the
meaning set forth in Section 2.17(c).


 


“Specified Listed Eligible Assets”
means, on any date of determination, the aggregate Listed Eligible Assets on
such date with the highest rankings (as determined pursuant to the most recent
ranking pursuant to Section 2.17(b) or (c), as applicable) with an
aggregate Borrowing Base Value equal to the lowest amount which is at least (i) the
product of (x) the Available Secured Bank Exposure multiplied  by
(y) 1.30 (or, if the Exchange Option 


 


22

















 


Termination shall have occurred and no Second
Priority Secured Exchanged Notes shall have been issued, 1.20), plus (ii) the
greater of (x) the product of (A) the Available Secured Note Exposure
(which, following the date of the Exchange Option Termination, if any, shall be
$0) multiplied  by (B) 1.30 and (y) $375,000,000 plus
(iii) if no Second Priority Secured Exchange Notes shall have been issued
and the Exchange Option Termination shall not have occurred on or prior to such
date of determination, the product of (x) the Outstanding Secured Exposure
multiplied  by (y) 0.1 minus (iv) the portion of
the Borrowing Base Value of the Collateral that is in excess of the amount
necessary to satisfy the Coverage Ratio on such date of determination.


 


“Subsidiary” means any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
the Borrower.


 


“Super-Majority Banks” means at any
time Banks having or holding more than 75% of the sum of (i) the aggregate
amount of all Available Commitments hereunder and (ii) the aggregate
unpaid principal amount of the Loans then outstanding hereunder; provided that
the Available Commitments of, and Loans held by, any Defaulting Bank shall be
excluded for purposes of making a determination of Super-Majority Banks.


 


“Syndication Agents” means each of
Bank of America, N.A. and Citicorp North America, Inc., in their
respective capacities as syndication agents hereunder and their respective
permitted successors in such capacity in accordance with the terms of this
Agreement.


 


“Taxes” means all federal, state,
local and foreign income and gross receipts taxes.


 


“Termination Date” means June 26,
2012.


 


“Termination Event” means (i) a “reportable
event”, as such term is described in Section 4043 of ERISA (other than a “reportable
event” not subject to the provision for 30-day notice to the PBGC), or an event
described in Section 4062(e) of ERISA, (ii) the withdrawal by
any member of the ERISA Group from a Multiemployer Plan during a plan year in
which it is a “substantial employer” (as defined in Section 4001(a)(2) of
ERISA), or the incurrence of liability by any member of the ERISA Group under Section 4064
of ERISA upon the termination of a Multiemployer Plan, (iii) the filing of
a notice of intent to terminate any Plan under Section 4041 of ERISA,
other than in a standard termination within the meaning of Section 4041 of
ERISA, or the treatment of a Plan amendment as a distress termination under Section 4041
of ERISA, (iv) the institution by the PBGC of proceedings to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or cause a trustee to be appointed to administer, any Plan or (v) any
other event or condition that might reasonably constitute grounds for the
termination of, or the appointment of a trustee to administer, any Plan or the
imposition of any liability or encumbrance or Lien on the Real Property Assets
or any member of the ERISA Group under ERISA or the Code.


 


23

















 


“Total Indebtedness” means, as of the
date of determination and without duplication, all Indebtedness of the Borrower
and its Consolidated Subsidiaries, but excluding the Borrower’s Share of all
Indebtedness of Investment Affiliates.


 


“Undepreciated Real Estate Assets”
means, as of any date, the cost (being the original cost to the Borrower or the
applicable Subsidiary plus capital improvements) of real estate assets of the
Borrower and its Subsidiaries on such date, before depreciation and
amortization of such real estate assets, determined on a consolidated basis in
accordance with GAAP.


 


“Unencumbered Assets” means the sum of
(i) Undepreciated Real Estate Assets not securing any portion of Secured
Debt and (ii) all other assets (but excluding intangibles and accounts
receivable) of the Borrower and its Subsidiaries not securing any portion of
Secured Debt on a consolidated basis in accordance with GAAP; provided that
assets (including Undepreciated Real Estate Assets) of any Subsidiary (other
than a Guarantor) having Indebtedness that is material to the value of such
assets shall be excluded from Unencumbered Assets.


 


“Uniform Commercial Code” means the
Uniform Commercial Code as the same may from time to time be in effect in the
State of New York or the Uniform Commercial Code (or similar code or statute)
of another jurisdiction, to the extent it may be required to apply to any item
or items of Collateral.


 


“United States” means the United
States of America, including the fifty states and the District of Columbia.


 


“Unsecured Debt” means the amount of
Indebtedness for borrowed money of the Borrower (or any Subsidiary) which is
not Secured Debt.


 


“Value” means, as of any date of
determination, with respect to each Unencumbered Asset, the lesser of (x) undepreciated
cost (or in the case of any asset that is less than 100% owned, directly or
indirectly, by the Borrower, the Borrower’s pro rata share thereof), and (y) market
value (or in the case of any asset that is less than 100% owned, directly or
indirectly, by the Borrower, the Borrower’s pro rata share thereof), all as
determined in accordance with GAAP.


 


“Venture LLC” means (i) an
Investment Affiliate that owns Loan Assets, Credit Tenant Lease Assets and/or
Other Real Estate Owned Assets and (ii) iStar Woodward LLC.


 


Section 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent (except for changes
concurred in by the Borrower’s independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Administrative Agent; provided that,
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article V to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Borrower 


 


24

















 


that the Required Banks wish to amend Article V for such purpose),
then the Borrower’s compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner reasonably satisfactory to the Borrower and the Required Banks.  The Borrower hereby agrees that any election
pursuant to FASB Statement No. 159 shall be disregarded for all purposes
of this Agreement.


 


Section 1.3. Types of Borrowings. The term “Borrowing”
denotes the aggregation of Loans of one or more Banks to be made to the
Borrower pursuant to Article II on the same date, all of which Loans are
of the same type (subject to Article VIII) and, except in the case of Base
Rate Loans, have the same Interest Period. Borrowings are classified for purposes
of this Agreement by reference to the pricing of Loans comprising such
Borrowing (e.g., a “Euro-Currency Borrowing” is a Borrowing comprised of
Euro-Currency Loans).


 


ARTICLE II




THE CREDITS


 


Section 2.1. Commitments to Lend. (a)             Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
at any time and from time to time during the Commitment Period in an aggregate
principal amount that will not result in all Loans of such Bank made on or
prior to the date of any drawing exceeding the Available Commitment of such
Bank on such day; provided that no Bank shall make any Loan if, after
giving effect to such Loan, the aggregate outstanding principal amount of all
Loans would exceed the aggregate amount of all Available Commitments on such
day.  Any amount of Loans repaid or
prepaid may not be reborrowed.


 


(b)           Loans may be made at any time and
from time to time during the Commitment Period; provided that there
shall be no more than eight Borrowings during such period.  Any Available Commitment as of the end of the
Commitment Period shall automatically terminate on such date.


 


(c)           Each Borrowing shall each be in an
aggregate principal amount not less than $100,000,000.


 


(d)           The Loans may from time to time be (a) Euro-Currency
Loans or (b) Base Rate Loans or (c) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Section 2.2 and Section 2.5.


 


Section 2.2. Notice of Borrowing. (a) With respect to
any Borrowing, the Borrower shall give the Administrative Agent notice not
later than 1:00 p.m. (New York City time) (x) the Business Day prior
to each Base Rate Borrowing, or in the case of the Closing Date, on the date of
such Base Rate Borrowing and (y) the third (3rd) Euro-Currency Business Day before each
Euro-Currency Borrowing, specifying:


 


25
















 


(i)                    the date of such Borrowing, which
shall be a Business Day in the case of a Base Rate Borrowing or a Euro-Currency
Business Day in the case of a Euro-Currency Borrowing,


 


(ii)                   the aggregate amount of such
Borrowing,


 


(iii)                  whether the Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Currency Loans,


 


(iv)                  in the case of a Euro-Currency
Borrowing, the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period,


 


(v)                   payment instructions for delivery of
such Borrowing; and


 


(vi)                  that no Default or Event of Default
has occurred or is continuing.


 


Section 2.3. Notice to Banks; Funding of Loans; Replacement of
Defaulting Bank.


 


(a)           Upon receipt of a
Notice of Borrowing from the Borrower in accordance with Section 2.2
hereof, the Administrative Agent shall, on the date such Notice of Borrowing is
received by the Administrative Agent, notify each applicable Bank of the
contents thereof and of such Bank’s share of such Borrowing, of the interest
rate applicable thereto and the Interest Period(s) and such Notice of
Borrowing shall not thereafter be revocable by the Borrower, unless the
Borrower shall pay any applicable expenses pursuant to Section 2.13.


 


(b)           Not later than 2:00 p.m.
(New York City time) on the date of each Borrowing as indicated in the
applicable Notice of Borrowing, each Bank shall (except as provided in
subsection (c) of this Section 2.3) make available its Pro Rata Share
of such Borrowing in Federal funds immediately available in New York, New York,
to the Administrative Agent at its address referred to in Section 9.1.


 


(c)           Unless the
Administrative Agent shall have received notice from a Bank prior to the time
of any Borrowing that such Bank will not make available to the Administrative
Agent such Bank’s share of such Borrowing, the Administrative Agent may assume
that such Bank has made such share available to the Administrative Agent on the
date of such Borrowing in accordance with this Section 2.3 and the
Administrative Agent may, in reliance upon such assumption, but shall not be
obligated to, make available to the Borrower on such date a corresponding
amount on behalf of such Bank.  If and to
the extent that such Bank shall not have so made such share available to the
Administrative Agent, such Bank agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
at the Federal Funds Rate, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank’s Loan
included in such Borrowing for purposes of this Agreement.  If such Bank shall not pay to the
Administrative Agent such corresponding amount after reasonable 


 


26

















 


attempts are made by the
Administrative Agent to collect such amounts from such Bank, the Borrower agrees
to repay to the Administrative Agent forthwith on demand such corresponding
amounts together with interest thereto, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the interest rate applicable thereto one (1) Business
Day after demand. Nothing contained in this Section 2.3(c) shall be
deemed to reduce the Commitment of any Bank or in any way affect the rights of
the Borrower with respect to any Defaulting Bank or the Administrative
Agent.  The failure of any Bank to make
available to the Administrative Agent such Bank’s share of any Borrowing in
accordance with Section 2.3(b) hereof shall not relieve any other
Bank of its obligations to fund its Commitment, in accordance with the
provisions hereof.


 


(d)           If any Bank becomes a Defaulting Bank and for so long as such Bank
remains a Defaulting Bank, then the Borrower may, at its sole expense and
effort, upon notice to such Bank and the Administrative Agent, require such
Bank to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.6), all its Available
Commitments under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Bank, if a Bank accepts such
assignment); provided that the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld; provided  further that nothing contained
in this clause (d) shall affect the obligations due to such Defaulting
Bank.


 


(e)           Subject to the
provisions hereof, the Administrative Agent shall make available each Borrowing
to the Borrower in Federal funds immediately available in accordance with, and
on the date set forth in, the applicable Notice of Borrowing.


 


Section 2.4.
Notes.


 


(a)           Each Bank may, by
notice to the Borrower and the Administrative Agent, request that its Loans be
evidenced by a Note in an amount equal to the aggregate unpaid principal amount
of such Loans. Any additional costs incurred by the Administrative Agent, the
Borrower or the Banks in connection with preparing such a Note shall be at the
sole cost and expense of the Bank requesting such Note. In the event any Loans
evidenced by such a Note are paid in full prior to the Maturity Date, any such
Bank shall return such Note to the Borrower. 
Each such Note shall be in substantially the form of Exhibit G
hereto.  Upon the execution and delivery
of any such Note, any existing Note payable to such Bank shall be returned to
the Borrower and replaced or modified accordingly.  Each reference in this Agreement to the “Note”
of such Bank shall be deemed to refer to and include any or all of such Notes,
as the context may require.


 


(b)           Upon receipt of any Bank’s
Note pursuant to Section 3.1(a), the Administrative Agent shall forward
such Note to such Bank.  Such Bank shall
record the date, amount, currency, type and maturity of each Loan made by it
and the date and amount of each payment of principal made by the Borrower, with
respect thereto, and may, if such Bank so elects in connection with any
transfer or enforcement of its Note, endorse on the appropriate schedule
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure of such Bank to make
any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Notes. 
Each 


 


27

















 


Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.


 


(c)           The Loans shall mature,
and the principal amount thereof shall be due and payable, on the Maturity
Date.


 


(d)           There shall be no more
than ten (10) Euro-Currency Group of Loans outstanding at any one time.


 


Section 2.5.
Method of Electing Interest Rates. (a) The Loans included in each
Borrowing shall bear interest initially at the type of rate specified by the
Borrower in the applicable Notice of Borrowing. 
Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in
each case to the provisions of Article VIII), as follows:


 


(i)                    if such Loans are Base Rate Loans,
the Borrower may elect to convert all or any portion of such Loans to
Euro-Currency Loans as of any Euro-Currency Business Day;


 


(ii)                   if such Loans are Euro-Currency
Loans, the Borrower may elect to convert all or any portion of such Loans to
Base Rate Loans and/or elect to continue all or any portion of such Loans as
Euro-Currency Loans for an additional Interest Period or additional Interest
Periods, in each case effective on the last day of the then current Interest
Period applicable to such Loans, or on such other date designated by the
Borrower in the Notice of Interest Rate Election provided the Borrower shall
pay any losses pursuant to Section 2.13.


 


Each such election shall be
made by delivering a notice (a “Notice of Interest Rate Election”) to
the Administrative Agent at least three (3) Euro-Currency Business Days
prior to, but excluding, the effective date of the conversion or continuation
selected in such notice.  A Notice of
Interest Rate Election may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that (i) such
portion is allocated ratably among the Loans comprising such Group of Loans, (ii) the
portion to which such Notice applies, and the remaining portion to which it
does not apply, are each in the minimum amounts required hereby, (iii) no
Loan may be continued as, or converted into, a Euro-Currency Loan when any
Event of Default has occurred and is continuing, provided, however, that if and
for so long as the Borrower shall have an Investment Grade Rating from S&P
and Moody’s, if the Borrower shall so request and the Required Banks shall so
elect, then a Loan may be continued as, or converted into, a Euro-Currency Loan
when any Event of Default has occurred and is continuing, and (iv) no
Interest Period shall extend beyond the Maturity Date.


 


(b)           Each Notice of Interest
Rate Election shall specify:


 


(i)                    the Group of Loans (or portion
thereof) to which such notice applies;


 


28

















 


(ii)                   the date on which the conversion or
continuation selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;


 


(iii)                  if the Loans comprising such Group of
Loans are to be converted, the new type of Loans and, if such new Loans are
Euro-Currency Loans, the duration of the initial Interest Period applicable
thereto; and


 


(iv)                  if such Loans are to be continued as
Euro-Currency Loans for an additional Interest Period, the duration of such
additional Interest Period.


 


Each Interest Period specified
in a Notice of Interest Rate Election shall comply with the provisions of the
definition of Interest Period.


 


(c)           Upon receipt of a
Notice of Interest Rate Election from the Borrower pursuant to subsection (a) above,
the Administrative Agent shall notify each Bank with Loans affected thereby the
same day as it receives such Notice of Interest Rate Election of the contents
thereof and the interest rates determined pursuant thereto and such notice
shall not thereafter be revocable by the Borrower.  If the Borrower fails to deliver a timely
Notice of Interest Rate Election to the Administrative Agent for any Group of
Euro-Currency Loans, such Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto.


 


Section 2.6.
Interest Rates.


 


(a)           Each Base Rate Loan
shall bear interest on the outstanding principal amount thereof, for each day
from the date such Loan is made until the date it is repaid or converted into a
Euro-Currency Loan pursuant to Section 2.5, at a rate per annum equal to
sum of the Base Rate plus the Applicable Margin for Base Rate Loans for such
day.


 


(b)           Each Euro-Currency Loan
shall bear interest on the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per annum equal to the
sum of the Applicable Margin for Euro-Currency Loans for such day plus the
Euro-Currency Rate applicable to such Interest Period.


 


(c)           In the event that, and
for so long as, any Event of Default shall have occurred and be continuing, any
overdue principal amount of the Loans, and, to the extent permitted by
applicable law, overdue interest and fees in respect of all Loans, shall bear
interest at the annual rate equal to the sum of the Base Rate and the
Applicable Margin for Base Rate Loans and two percent (2%), or, if any Loan
shall have been continued as, or converted into, a Euro-Currency Loan, then, as
to such Loan only, the sum of the Euro-Currency Rate applicable to such Loan
and the Applicable Margin for Euro-Currency Loans, and two percent (2%)
(collectively, the “Default Rate”).


 


(d)           The Administrative
Agent shall determine each interest rate applicable to the Loans
hereunder.  The Administrative Agent
shall give prompt notice to the Borrower and the Banks of each rate of interest
so determined, and its determination thereof shall be conclusive in the absence
of demonstrable error.


 


29

















 


(e)           Interest on all Loans
bearing interest at the Base Rate shall be payable in arrears on the first
Business Day of each calendar month. Interest on all Loans bearing interest
based on the Euro-Currency Rate shall be payable in arrears on the last
Euro-Currency Business Day of the applicable Interest Period.


 


Section 2.7.
Fees.


 


(a)           Commitment Fee;
Other Fees. The Borrower agrees to pay to the Administrative Agent, for the
account of the Banks, ratably in proportion to their respective Commitments, a
commitment fee equal to 0.25% of the aggregate amount of Commitments in effect
on the Closing Date (prior to giving effect to any Loans to be made on such
date hereunder), which fee shall be payable in full on the Closing Date.  The Borrower agrees to pay to the
Administrative Agent for its own account and the account of the Agents such
fees as may from time to time be separately agreed upon among the Borrower and
such Agents.


 


(b)           Fees Non-Refundable.
All fees set forth in this Section 2.7 shall be deemed to have been earned
on the date payment is due in accordance with the provisions hereof and shall
be non-refundable.  The obligation of the
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon the Borrower and shall inure to the benefit of the Administrative
Agent and the Banks regardless of whether any Loans are actually made.


 


Section 2.8.
Maturity Date. Any Loans outstanding on the Maturity Date (together with
accrued interest thereon and all other Obligations) shall be due and payable on
such date.


 


Section 2.9.
Optional Prepayments.


 


(a)           The Borrower may, upon
at least one (1) Business Day’s notice to the Administrative Agent, prepay
any Group of Base Rate Loans, in whole at any time, or from time to time in
part in amounts aggregating $1,000,000 or more, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of
prepayment.  Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group of Loans or Borrowing.


 


(b)           The Borrower may, upon
at least three (3) Euro-Currency Business Days’ notice to the
Administrative Agent, given no later than 1:00 p.m. (New York time) prepay
all, or from time to time in part in amounts aggregating $5,000,000 or more,
any Group of Euro-Currency Loans as of the last day of the Interest Period
applicable thereto.  Except as provided
in Article VIII, the Borrower may not prepay all or any portion of the
principal amount of any Euro-Currency Loan prior to the end of the Interest
Period applicable thereto unless the Borrower shall also pay any applicable
expenses pursuant to Section 2.13. Any such prepayment notice shall be
given on or prior to the third (3rd)
Euro-Currency Business Day prior to, but excluding, the date of prepayment to
the Administrative Agent. Each such optional prepayment shall be applied to
prepay ratably the Loans of the Banks included in any Group of Euro-Currency
Loans.


 


(c)           The Borrower may at any
time and from time to time cancel all or any part of the Available Commitments
in amounts aggregating $25,000,000 or a larger multiple of 


 


30

















 


$1,000,000 by the delivery to
the Administrative Agent of a notice of cancellation upon at least three (3) Business
Day’s notice to the Administrative Agent, whereupon, in either event, all or
such portion of the Available Commitments, as applicable, shall terminate as to
the applicable Banks, pro rata on the date set forth in such notice of
cancellation.


 


(d)           Any amounts so prepaid
pursuant to Section 2.9(a) or (b)  may not be borrowed or
reborrowed.  In the event the Borrower
elects to cancel all or any portion of the Commitments pursuant to Section 2.9(c) hereof,
such amounts may not be reborrowed.


 


Section 2.10.
Mandatory Prepayments; Cure .


 


(a)           After the occurrence
and during the continuation of a Principal Collateral Payment Event, any
Principal Collateral Payments received by or on behalf of any Loan Party shall,
within three Business Days of receipt thereof, be applied toward the prepayment
of the Loans.


 


(b)           If, at any time, the
Borrower fails to satisfy the applicable Coverage Test, the Borrower shall,
within ten days after such failure, prepay the Loans and/or cause the Subsidiaries
party to the Security Agreement to pledge additional Collateral under the
Security Agreement and in accordance with the Loan Documents, in a combined
amount sufficient to cure such Coverage Test deficiency (it being understood
that the notice limitations in Section 2.9 shall not apply to any such
prepayment but Section 2.13 shall apply thereto).


 


(c)           If at any time during
the Commitment Period, (i) a prepayment of the Loans is required to be
made pursuant Section 2.10(a) or (b) and (ii) the amount of
such prepayment is greater than the aggregate principal amount of Loans then
outstanding, the excess amount of such prepayment (after giving effect to the
prepayment of all outstanding Loans) shall instead reduce the Available
Commitments on a pro rata basis and such excess amount shall be placed in
escrow at an account maintained at the Administrative Agent and made available
to the Borrower at any time that the
conditions set forth in Section 3.2 are satisfied.


 


(d)           Each mandatory
prepayment pursuant to this Section 2.10 shall be applied ratably
according to the respective outstanding principal amounts of the Loans then
held by the Banks.  The application of
any mandatory prepayment pursuant to this Section 2.10 shall be made, first,
to Base Rate Loans and, second, to Euro-Currency Loans.  Each
prepayment of the Loans under this Section 2.10 shall be accompanied by
accrued and unpaid interest thereon to the date of such prepayment on the
amount so prepaid.


 


Section 2.11.
General Provisions as to Payments.


 


(a)           The Borrower shall make
each payment of the principal of and interest on the Loans and fees hereunder,
without set-off or counterclaim, by initiating a wire transfer not later than
1:00 p.m. (New York City time) on the date when due, of Federal funds immediately
available in New York, New York, to the Administrative Agent at its address
referred to in Section 9.1, it being understood that written or facsimile
notice by the Borrower to the Administrative Agent to make a payment from the
funds in the Borrower’s account maintained at the Administrative Agent shall
constitute the making of such payment to the extent of such funds held in such
account.  The Administrative Agent will
promptly (and in any event within one (1) 


 


31

















 


Business Day after receipt
thereof) distribute to each Bank its ratable share in accordance with the
amount of such Bank’s relevant outstanding Loans or Commitment, as the case may be, of each
such payment received by the Administrative Agent for the account of the
Banks.  If and to the extent that the
Administrative Agent shall receive any such payment for the account of the
Banks on or before 11:00 a.m. (New York City time) on any Business Day (or
Euro-Currency Business Day, as applicable), and the Administrative Agent shall
not have distributed to any Bank its applicable share of such payment on such
day, the Administrative Agent shall distribute such amount to such Bank
together with interest thereon, for each day from the date such amount should
have been distributed to such Bank until the date the Administrative Agent
distributes such amount to such Bank, at the Federal Funds Rate.  Whenever any payment of principal of, or
interest on the Base Rate Loans or of fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day.  Whenever any
payment of principal of, or interest on, the Euro-Currency Loans shall be due
on a day which is not a Euro-Currency Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Currency Business Day
unless such Euro-Currency Business Day falls in another calendar month, in
which case the date for payment thereof shall be the immediately preceding Euro-Currency
Business Day.  If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.


 


(b)           Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Banks hereunder that the Borrower will
not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent that the Borrower shall not have so made
such payment, each Bank shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Administrative Agent, at the Federal Funds
Rate.


 


Section 2.12.
Non-Pro Rata Prepayments. 
Notwithstanding anything to the contrary herein, the Borrower, with the
consent of the Banks whose Loans are to be prepaid pursuant to this Section 2.12,
shall be permitted to make non-pro rata optional prepayments of the Loans at a
Discount greater than or equal to 20% of the aggregate principal amount of
Loans to be so prepaid; provided that (i) the Loans so prepaid are
cancelled, (ii) any such prepayment is effected in accordance with
procedures reasonably satisfactory to the Joint Lead Arrangers to ensure that
each Bank has an opportunity to participate in such prepayment on a ratable
basis in proportion to the respective amounts of Loans offered by each Bank at
the relevant price and (iii) at the time of any such prepayment (x) no
Default or Event of Default has occurred or is continuing and (y) the
Fixed Charge Coverage Ratio is at least 1.25 to 1.00.


 


Section 2.13. Funding Losses. If the Borrower makes any
payment of principal with respect to any Euro-Currency Loan (pursuant to Article II,
VI or VIII or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or if the Borrower fails to borrow any Euro-Currency
Loans after notice has been given to any Bank in accordance with Section 2.3(a),
or if the Borrower shall deliver a Notice of Interest Rate Election specifying
that a Euro-Currency Loan shall be converted on a date other than the first
(1st) day of the then current 


 


32

















 


Interest Period applicable thereto, the Borrower shall
reimburse each Bank within 15 days after certification by such Bank of such
loss or expense (which shall be delivered by each such Bank to the
Administrative Agent for delivery to the Borrower) for any resulting loss
(based on interest only, exclusive of fees, if any) or expense incurred by it
(or by an existing Participant in the related Loan), including, without
limitation, any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or failure to borrow, provided that such Bank shall have delivered to
the Administrative Agent and the Administrative Agent shall have delivered to
the Borrower a certification as to the amount of such loss or expense, which
certification shall set forth in reasonable detail the basis for and
calculation of such loss or expense and shall be conclusive in the absence of
demonstrable error.


 


Section 2.14. Computation of Interest and Fees. With
respect to Base Rate Loans, the rate of interest on which is calculated based
on the Prime Rate hereunder, interest thereon shall be computed on the basis of
a year of 365 days (or 366 days in a leap year) and paid for the actual number
of days elapsed (including the first day but excluding the last day).  All other interest and fees shall be computed
on the basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day).


 


Section 2.15. Use of Proceeds. The Borrower shall use the
proceeds of the Loans for general corporate purposes, including, without
limitation, the origination, acquisition and funding of Loan Assets, Credit
Tenant Lease Assets and other investments, the repayment of maturing debt
obligations, the repurchase or exchange of public notes of the Borrower, the
acquisition of other assets, and for general working capital needs of the
Borrower, in each case, in accordance with and subject to the terms and
conditions of this Agreement.


 


Section 2.16. Payments. 
If any Bank shall fail to make any payment required to be made by it
pursuant to Section 2.3(c) or Section 7.6, then the
Administrative Agent may, in its sole discretion (notwithstanding any contrary
provision of this Agreement), apply any amounts thereafter received by it from
any Loan Party for the account of such Bank to satisfy such Bank’s obligations
under such Sections until all such unsatisfied obligations are fully paid; and
if such Bank shall have failed to make any payment required to be made by it
pursuant to any equivalent provision under either New Credit Agreement and
there are no such unsatisfied obligations hereunder, then the Administrative
Agent may apply any such amounts received by it for the account of such Bank to
satisfy such Bank’s obligations under the equivalent provisions under either
New Credit Agreement (or, in the event the institution serving as
Administrative Agent hereunder is not, at such time, the same institution serving
as administrative agent under such New Credit Agreement, turn over such amounts
to the applicable administrative agent under such New Credit Agreement to be
applied for such purposes).


 


Section 2.17. Collateral. (a)  The Obligations shall
be secured by a perfected first priority security interest in the
Collateral.  The Borrower shall be
entitled to withdraw Collateral in inverse order of the ranking of such
Collateral on the Pledged Collateral List (it being understood that any asset
so withdrawn shall be automatically included in the Listed Eligible Assets as
the highest ranked asset (and the list shall be adjusted accordingly)) so long
as, both immediately before and after giving effect to such withdrawal, (i) no
Material Default or Event of Default shall have occurred and be continuing (or
shall result therefrom) and (ii) except for 


 


33

















 


any such withdrawal which the Borrower reasonably
determines is necessary for compliance with any covenant applicable under the
terms of any Indebtedness of the Borrower as in effect on the Closing Date
relating to the maintenance of “Total Unencumbered Assets” (or any similar
concept), the Fixed Charge Coverage Ratio at the time of such withdrawal is at
least 1.25 to 1.00.  Notwithstanding any
other provisions in this Section 2.17, Non-Performing Loan Assets and
Other Real Estate Owned Assets that are disregarded in calculating the
aggregate Borrowing Base Value as provided in the definition of “Borrowing Base
Value” may, so long as no Material Default or Event of Default shall have
occurred and be continuing (or shall result therefrom), be withdrawn, at the
option of the Borrower, to the extent of any amount so disregarded; provided
that at the time of such withdrawal of any such assets, the Joint Lead
Arrangers shall have the right, but not the obligation, to rank such assets as
Listed Eligible Assets.  Notwithstanding
any other provisions in this Section 2.17, (x) the Borrower shall be
entitled to withdraw Collateral in connection with payment or prepayment of
such Collateral and (y) the Borrower shall be permitted to withdraw such
Collateral in connection with sales to third parties or a monetization (that is
not a payment or prepayment) (any such 
monetization or sale, a “Third Party Sale”) provided that in
connection with any such Third Party Sale and after giving effect to such Third
Party Sale and the prior addition (a “Collateral Addition”) of any
replacement Collateral (which replacement Collateral shall comprise the highest
ranked Listed Eligible Assets immediately prior to such replacement and the
lowest ranked Collateral on the Pledged Collateral List immediately following
such replacement), either (I) no Material Default or Event of Default
shall have occurred and be continuing or (II) a Material Default or Event
of Default shall have occurred and be continuing, but such Third Party Sale is
consummated pursuant to a binding commitment entered into at a time that no
Material Default or Event of Default had occurred and was continuing or would
have resulted therefrom (it being understood that the proceeds of any such
transaction described in clause (x) or (y) above shall be paid into
the accounts established pursuant to Section 5.8).  At such time as any Listed Eligible Assets
are required to be pledged as Collateral in order to comply with the terms
hereof, the Borrower shall (i) cause a sufficient amount of the highest
ranked Listed Eligible Assets to be transferred to a Collateral SPV and (ii) take
any other actions as the Administrative Agent or the Collateral Trustee may
reasonably request for the purposes of fully perfecting or renewing the rights
and security interests of the Collateral Trustee, on behalf of the Banks, with
respect to the Collateral.


 


In addition to Collateral withdrawals otherwise permitted pursuant to
this Agreement or any other Loan Document, promissory notes and related
transfer documents, if any, constituting part of any Collateral (and any
related collateral) if requested by the Borrower at any time prior to the
commencement of a Foreclosure (as defined in the Collateral Trust Agreement) in
respect thereof, shall be released by the Collateral Trustee to the custody of
the Borrower, the applicable Grantor or its agents in escrow pending any
enforcement action, exercise of rights or other customary actions in lieu of
enforcement or for the purpose of correction of defects, if any, in each case
in respect of any such promissory notes and related collateral.  It is understood and agreed that any Collateral released pursuant to the foregoing
sentence shall remain Collateral except in connection with a withdrawal
otherwise permitted pursuant to this Agreement or any other Loan Document.


 


(b)           Beginning on October 15, 2009 and on each April 15th and October 15th thereafter (or, if such day is
not a Business Day, the next following Business Day), the Joint Lead Arrangers
shall (i) in consultation with Barclays Bank PLC, Wachovia Bank, National 


 


34

















 


Association and Deutsche Bank AG New York
Branch (in each case so long as it shall be a Bank under this Agreement or
either of the New Credit Agreements) (each, a “Consulting Bank”)
undertake a review to determine if any re-ranking of the Listed Eligible Assets
and/or the Pledged Collateral List is appropriate, and (ii) if any such
re-ranking is appropriate, undertake such re-ranking, in their sole and
absolute discretion, in consultation with the Consulting Banks.  In connection with any such re-ranking, the Borrower
shall cooperate with the Joint Lead Arrangers in any diligence, including
providing information related to the Collateral and the Listed Eligible Assets,
reasonably requested by the Joint Lead Arrangers for purposes of such
re-ranking.  Each inclusion of assets in
the Collateral shall be in the order of the then-current ranking of Listed
Eligible Assets and, following inclusion, such assets shall constitute the
lowest ranked Collateral on the Pledged Collateral List.  Any increase in the funding of any asset
included in the Collateral or Listed Eligible Assets shall be considered part
of such asset and shall be included in the Borrowing Base Value thereof.


 


(c)           Any newly originated or acquired assets or assets that become
available that were previously pledged or mortgaged as collateral in connection
with the DB Master Repurchase Agreement or the GE Credit Tenant Lease Facility
that qualify as Eligible Assets shall be automatically included in the Listed
Eligible Assets (and the Joint Lead Arrangers may re-rank the Listed Eligible
Assets in connection therewith, in
consultation with the Consulting Banks).  Any Fremont Asset that
qualifies as an Eligible Asset, immediately as of the time it is no longer
subject to the Fremont Participation Agreement, shall be automatically included
in the Listed Eligible Assets. 
Notwithstanding anything to the contrary herein, at the time any Fremont
Assets are added to Listed Eligible Assets and once the Joint Lead Arrangers
have been afforded a reasonable opportunity to rank such assets, in consultation with the Consulting Banks
in a special one-time reranking of Listed Eligible Assets (the “Special
Fremont Reranking”), the Joint Lead Arrangers may effect substitutions of
the Collateral with any Listed Eligible Assets.


 


Section 2.18. Mortgages.  The Borrower shall cause the applicable
Pledged Collateral LLCs to execute and deliver to the Collateral Trustee, not
later than 90 days after the Closing Date, Mortgages with respect to real
properties that constitute Credit Tenant Lease Assets owned by such Pledged
Collateral LLCs comprising not less than 50% of the Borrowing Base Value of all
Mortgage Eligible Assets; provided that (i) Mortgages shall not be
required to be delivered with respect to any Mortgage-Exempt Asset, (ii) the
Mortgaged Properties, at any time, shall be comprised of the highest ranked
Mortgage-Eligible Assets from the Pledged Collateral List in effect at the time
of the delivery of the Mortgage in respect of each Mortgaged Property (it being
understood that no Mortgage will be required to be delivered solely because of
a re-ranking of the Listed Eligible Assets and/or the Pledged Collateral List),
and (iii) each Mortgage required to be delivered pursuant to this Section 2.18
shall secure 50% of the undepreciated book value of the applicable Credit
Tenant Lease Asset (reflecting any impairment taken by the applicable
Collateral LLC but without adding back any depreciation before the most recent
such impairment) at the time such Mortgage is entered in to.  Following the date that is 90 days after the
Closing Date, the Borrower shall cause Mortgages in compliance with this Section 2.18
to be delivered as necessary so that at all times the Mortgaged Properties
shall comprise not less than 50% of the Borrowing Base Value of all
Mortgage-Eligible Assets. 
Notwithstanding anything to the contrary in this Section 2.18,
neither the Borrower nor any Grantor shall be required to deliver environmental
reports, third-party reports, appraisals, surveys, title insurance 


 


35

















 


policies,
tract searches or legal opinions in respect of any Mortgaged Property or
Mortgage thereon.


 


ARTICLE III


 


CONDITIONS


 


Section 3.1. Closing. The Closing Date shall occur on the
date when each of the following conditions is satisfied (or waived in writing
by the Administrative Agent and the Banks), each document to be dated the
Closing Date unless otherwise indicated:


 


(a)           the Borrower as of the
Closing Date shall have executed and delivered to the Administrative Agent a
Note or Notes for the account of each Bank requesting the same dated the
Closing Date and complying with the provisions of Section 2.4;


 


(b)           the Borrower and the
Administrative Agent and each of the Banks shall have executed and delivered to
the Administrative Agent a duly executed original of this Agreement;


 


(c)           each Guarantor shall
have executed and delivered to the Administrative Agent a duly executed
original of the Guarantee Agreement;


 


(d)           each Grantor and the
Collateral Trustee shall have executed and delivered to the Administrative
Agent a duly executed original of the Security Agreement;


 


(e)            each Guarantor, the
Collateral Trustee and each other party thereto shall have executed and
delivered to the Administrative Agent a duly executed original of the
Collateral Trust Agreement;


 


(f)            the Collateral Trustee
shall have received any notes or other evidence of Indebtedness (if any)
representing Collateral pledged under the Security Agreement and required to be
delivered thereunder as of the Closing Date and appropriate transfer documents
with respect to any Loan Assets included in the Collateral as of the Closing
Date, signed in blank by the appropriate Collateral SPV; the Collateral Account
(as defined in the Collateral Trust Agreement) shall have been established;
and, each document (including, without limitation, any Uniform Commercial Code
financing statement to be filed in the jurisdiction of organization of each
Grantor) required by the Security Agreement or under law or reasonably
requested by the Administrative Agent to be filed, registered, recorded or
delivered in order to create or perfect the Liens intended to be created under
the Security Agreement shall have been delivered to the Administrative Agent in
proper form for filing, registration or recordation (if applicable);


 


(g)           the Administrative
Agent shall have received opinions of (i) Clifford Chance US LLP, special
counsel for the Borrower, and (ii) Geoffrey Dugan, Esq., in-house
counsel for the Borrower, each acceptable to the Administrative Agent, the
Banks and their counsel;


 


36
















 


(h)           the Administrative
Agent shall have received all documents the Administrative Agent may reasonably
request relating to the existence of the Borrower, each Collateral SPV, each
Collateral LLC the equity interests in which are pledged as Collateral and any
other Guarantor as of the Closing Date, the authority for and the validity of
this Agreement and the other Loan Documents, the incumbency of officers
executing this Agreement and the other Loan Documents and any other matters
relevant hereto, all in form and substance satisfactory to the Administrative
Agent.  Such documentation shall include,
without limitation, the articles of incorporation, certificate of formation or
similar organizational document of each such entity, as amended, modified or
supplemented on or prior to the Closing Date, certified to be true, correct and
complete by a senior officer of such entity as of a date not more than ten (10) days
prior to the Closing Date, together with a good standing certificate as to each
such entity from the Secretary of State (or the equivalent thereof) of its
jurisdiction of organization, to be dated not more than thirty (30) days prior
to the Closing Date.  Any such
organizational documents of each Collateral SPV and each Collateral LLC shall
provide for, and require that there at all times be, a special director or
member selected by the Administrative Agent whose consent would be required for
a bankruptcy filing by such Collateral SPV or Collateral LLC or for the
transfer of any equity interests therein (other than the sale of such equity
interests in a transaction permitted under the Loan Documents);


 


(i)            the Borrower shall
have executed a solvency certificate acceptable to the Administrative Agent;


 


(j)            the Administrative
Agent shall have received all certificates, agreements and other documents and
papers referred to in this Section 3.1 and the Notice of Borrowing
referred to in Section 2.2, if applicable, unless otherwise specified, in
sufficient counterparts, satisfactory in form and substance to the
Administrative Agent in its reasonable discretion;


 


(k)           the Borrower and each
other Loan Party shall have taken all actions required to authorize the
execution and delivery of this Agreement and any other Loan Document to which
it is a party and the performance thereof by the Borrower or such Loan Party,
as applicable;


 


(l)            the Banks shall be
satisfied that the Borrower is not subject to any present or contingent
Environmental Claim, and the Borrower shall have delivered a certificate so
stating;


 


(m)          (i) the
Administrative Agent shall have received, on or before the Closing Date, (x) for
its and any other Bank’s account, all fees due and payable pursuant to Section 2.7
hereof on or before the Closing Date and (y) all other fees required to be
paid and all expenses for which invoices have been presented and (ii) the
reasonable and documented fees and expenses accrued through the Closing Date of
Simpson Thacher & Bartlett LLP shall have been paid to Simpson Thacher &
Bartlett LLP;


 


(n)           the Borrower shall have
delivered copies of all consents, licenses and approvals, if any, (subject to Section 4.3)
required in connection with the execution, delivery and performance by the
Borrower or any Guarantor, or the validity and enforceability, of the Loan 


 


37

















 


Documents, or in connection
with any of the transactions contemplated thereby, and such consents, licenses
and approvals shall be in full force and effect;


 


(o)           no Default or Event of
Default shall have occurred and be continuing before or immediately after
giving effect to the transactions contemplated hereby;


 


(p)           the Borrower shall have
delivered a certificate in form acceptable to the Administrative Agent showing
compliance with the requirements of Section 5.10 as of the Closing Date;


 


(q)           the Borrower shall have
delivered Cash Flow Projections which shall include (x) the Borrower’s
projected sources and uses of cash (and the timing thereof) through a date that
is on or after June 26, 2012 and (y) that such sources are at all
times sufficient for such uses;


 


(r)            (i) the Existing
2006 Credit Agreement shall have either (A) if all lenders thereunder have
executed a satisfactory Consent and Addendum to the Existing 2006 Credit
Agreement Amendment and Commitment Transfer Agreement, been terminated (and all
loans thereunder and other amounts payable in respect thereof shall have been
paid in full and all commitments to extend credit thereunder shall have been
terminated) or (B) been effectively amended pursuant to the Existing 2006
Credit Agreement Amendment and Commitment Transfer Agreement and all “Commitment
Transfers” referred to therein shall have been consummated and (ii) the
Existing 2007 Credit Agreement shall have either (A) if all lenders
thereunder have executed a satisfactory Consent and Addendum to the Existing
2007 Credit Agreement Amendment and Commitment Transfer Agreement, been
terminated (and all loans thereunder and other amounts payable in respect
thereof shall have been paid in full and all commitments to extend credit
thereunder shall have been terminated) or (B) been effectively amended
pursuant to the Existing 2007 Credit Agreement Amendment and Commitment
Transfer Agreement and all “Commitment Transfers” referred to therein shall
have been consummated;


 


(s)           in the event that
either Existing Credit Agreement shall remain outstanding on the Closing Date,
after giving effect to the “Commitment Transfers” referred to above and the
transactions contemplated hereby (including borrowings requested hereunder and
under the Second Priority Bank Facilities as of the Closing Date), the Borrower
shall have drawn, and there shall remain outstanding, loans under such Existing
Credit Agreement (without giving effect to any reductions in the aggregate
principal amount thereof due to fluctuations in currency after March 10,
2009) equal to the total commitments thereunder in effect on the Closing Date
(as such amount may be reduced solely by any unfunded commitments of defaulting
lenders thereunder and any amounts representing letter of credit usage of the
lenders remaining thereunder as of March 10, 2009);


 


(t)            the Existing 2008
Credit Agreement shall have been effectively amended pursuant to the Existing
2008 Credit Agreement Amendments;


 


(u)           the Borrower shall have
entered into the New Credit Agreements; and


 


38

















 


(v)           the representations and
warranties of the Loan Parties contained in the Loan Documents shall be true
and correct in all material respects on and as of the Closing Date both before
and after giving effect to the transactions contemplated hereby; provided that,
to the extent such representations and warranties expressly refer to an earlier
date, they shall be true and correct in all material respects as of such
earlier date; provided further, that any representation and warranty that is
qualified as to “materiality”, “Material Adverse Effect” or similar language
shall be true and correct (after giving effect to such qualification therein)
in all respects on such respective dates.


 


Section 3.2. Borrowings. The obligation of any Bank to make
a Loan is subject to the satisfaction of the following conditions:


 


(a)           receipt by the
Administrative Agent of a Notice of Borrowing as required by Section 2.2;


 


(b)           no Default or Event of
Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans;


 


(c)           the Fixed Charge
Coverage Ratio shall be at least 1.25 to 1.00;


 


(d)           on a pro forma basis,
after giving effect to the making of such Loans and any substantially
contemporaneous addition of any new Collateral with respect to which the
Collateral Trustee shall have been granted a first priority security interest
for the benefit of the Agents and the Banks, the Borrower shall be in
compliance with the applicable Coverage Test; and


 


(e)           the representations and
warranties of the Loan Parties contained in the Loan Documents shall be true
and correct in all material respects on and as of the date of such Borrowing
both before and after giving effect to the making of such Loans; provided that,
to the extent such representations and warranties expressly refer to an earlier
date, they shall be true and correct in all material respects as of such
earlier date; provided further, that any representation and warranty that is
qualified as to “materiality”, “Material Adverse Effect” or similar language
shall be true and correct (after giving effect to such qualification therein)
in all respects on such respective dates.


 


Each Borrowing hereunder shall
be deemed to be a representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (b), (c), (d), and (e) of
this Section 3.2. In the event that any representation or warranty (as set
forth in clause (e)) would be materially inaccurate, the Borrower shall
disclose the same in writing to the Banks, provided, however,
that the Borrower may only change such representation or warranty with the
prior written consent of the Required Banks. Notwithstanding anything to the
contrary, no Borrowing shall be permitted if such Borrowing would cause the
Borrower to fail to be in compliance with any of the covenants contained in
this Agreement or in any of the other Loan Documents.


 


39

















 


ARTICLE IV



 REPRESENTATIONS AND WARRANTIES


 


In order to induce the Administrative Agent
and each of the other Banks which is or may become a party to this Agreement to
make the Loans, the Borrower makes the following representations and warranties
as of the Closing Date and, in accordance with Section 3.2(e) hereof,
as of each Borrowing.  Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.


 


Section 4.1. Existence and Power. Each of the Loan Parties
is a corporation, limited liability company or limited partnership, as
applicable, duly organized or incorporated, validly existing and in good
standing under the laws of the jurisdiction of its organization or
incorporation and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to conduct
and has been duly qualified and is in good standing in every jurisdiction in
which the failure to be so qualified and/or in good standing is likely to have
a Material Adverse Effect.


 


Section 4.2. Power and Authority. Each of the Loan Parties
has the requisite power and authority to execute, deliver and carry out the
terms and provisions of each of the Loan Documents to which it is a party and
has taken all necessary action, if any, to authorize the execution and delivery
on its behalf and its performance of the Loan Documents to which it is a
party.  Each of the Loan Parties has duly
executed and delivered each Loan Document (or with respect to any Mortgage,
will duly execute and deliver at the time such Mortgage is required to be
executed and delivered in accordance with Section 2.18) to which it is a
party in accordance with the terms of this Agreement, and each such Loan
Document constitutes (or, upon execution and delivery thereof, will constitute)
its legal, valid and binding obligation, enforceable in accordance with the
terms thereof, except as enforceability may be limited by applicable
insolvency, bankruptcy or other similar laws affecting creditors rights
generally, or general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.


 


Section 4.3. No Violation. Neither the execution, delivery
or performance by or on behalf of any Loan Party of the Loan Documents to which
it is a party, nor compliance by any such Loan Party with the terms and
provisions thereof nor the consummation of the transactions contemplated by
such Loan Documents, (i) will materially contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will materially
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(other than Liens created under the Collateral Documents) upon any of the
property or assets of the Borrower or any of its Consolidated Subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust, or other
agreement or other instrument to which the Borrower (or any partnership of
which the Borrower is a partner) or any of its Consolidated Subsidiaries is a
party or by which it or any 


 


40

















 


of its property or assets is bound or to which it is
subject (except for such breaches and defaults under loan agreements which the
lenders thereunder have agreed to forbear pursuant to valid forbearance
agreements), or (iii) will cause a material default by any Loan Party
under any organizational document of any Person in which such Loan Party has an
interest, or cause a material default under such Person’s agreement or
certificate of limited partnership, the consequences of which conflict,
contravention, breach or default under the foregoing clauses (i), (ii) or (iii) would
(x) have a Material Adverse Effect (provided, however, that for purposes of determining
whether the consequences of a conflict, contravention, breach or default under
clause (ii) of this Section 4.3 would have a Material Adverse
Effect, clause (ii) of the definition of the term “Material Adverse
Effect” shall be modified to read as follows: “(ii) the ability of the
Administrative Agent or the Banks to enforce the Loan Documents in a manner
that materially and adversely affects the rights of the Administrative Agent or
the Banks thereunder”), or (y) result in or require the creation or
imposition of any Lien whatsoever upon any Property (except as contemplated
herein).


 


Section 4.4. Financial Information. (a) The
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries as of December 31, 2008, and for the Fiscal Year then ended,
reported on by PricewaterhouseCoopers LLP fairly presents, in conformity with
GAAP, the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and the consolidated results of operations and
cash flows for such Fiscal Year.


 


(b)           Since December 31,
2008, (i) except as may have been disclosed in writing to the Banks prior
to the Closing Date, nothing has occurred having a Material Adverse Effect, and
(ii) except (x) as set forth on Schedule 4.4(b) and (y) for the incurrence of
Loans hereunder and loans under the Existing Credit Agreements and the New
Credit Agreements, in each case on the Closing Date, the Loan Parties have not
incurred any material Indebtedness or guaranteed any Indebtedness on or before
the Closing Date.


 


Section 4.5. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Borrower threatened
against or affecting, (i) the Borrower or any of its Consolidated
Subsidiaries, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of the assets of the
Borrower or any of its Consolidated Subsidiaries, before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could, individually, or in
the aggregate have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents.


 


Section 4.6. Compliance with ERISA. (a) Except as set
forth on Schedule 4.6(a) attached hereto, neither the Borrower nor
any other Loan Party is a member of or has entered into, maintained,
contributed to, or been required to contribute to, or may incur any liability
with respect to any Plan or Multiemployer Plan. 
In the event that at any time after the Closing Date, the Borrower or
any other Loan Party shall become a member of any other material Plan or Multiemployer
Plan, the Borrower promptly shall notify the Administrative Agent thereof (and
from and after such notice, Schedule 4.6(a) shall be deemed
modified thereby).


 


(b)           No assets of the
Borrower or any other Loan Party constitute “assets” (within the meaning of
ERISA or Section 4975 of the Code, including, but not limited to, 29 


 


41

















 


C.F.R. § 2510.3-101 or any
successor regulation thereto) of an “employee benefit plan” within the meaning
of Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of
the Code.  In addition to the
prohibitions set forth in this Agreement and the other Loan Documents, and not
in limitation thereof, the Borrower covenants and agrees that the Borrower
shall not, and shall not permit any other Loan Party to, use any “assets”
(within the meaning of ERISA or Section 4975 of the Code, including but
not limited to 29 C.F.R. § 2510.3101) of an “employee benefit plan” within the
meaning of Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of
the Code to repay or secure the Note, the Loan, or the Obligations.


 


Section 4.7. Environmental. (a) The
Borrower conducts reviews of the effect of Environmental Laws on the business,
operations and properties of the Borrower and its Consolidated Subsidiaries
when necessary in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently owned,
any capital or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on operating
activities, and any actual or potential liabilities to third parties,
including, without limitation, employees, and any related costs and
expenses).  On the basis of this review,
the Borrower has reasonably concluded that such associated liabilities and
costs, including, without limitation, the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.


 


(b)           Except as, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect: (i) neither
the Borrower nor any Guarantors has received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the facilities and properties owned, leased or operated by the Borrower or
any Guarantors (the “Properties”) or the business operated by the
Borrower or any Guarantor (the “Business”) that is not fully and finally
resolved, (ii) to the Borrower’s actual knowledge, after due inquiry, no judicial
proceeding or governmental or administrative action is pending or, to the
Borrower’s actual knowledge, after due inquiry, threatened, under any
Environmental Law to which the Borrower or any Guarantor is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Business; and (iii) to the
Borrower’s actual knowledge, the Properties and all operations at the
Properties are in compliance, and have in the last five years been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the Business.


 


Section 4.8. Taxes. The Borrower and its Consolidated
Subsidiaries have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment received
by the Borrower, or any Consolidated Subsidiary, except (i) such taxes, if
any, as are reserved against in accordance with GAAP, (ii) such taxes as
are being contested in good faith by appropriate proceedings or (iii) such
tax returns or such taxes, the failure to file 


 


42

















 


when due or to make payment when due and payable will
not have, in the aggregate, a Material Adverse Effect. The charges, accruals
and reserves on the books of the Borrower and its Consolidated Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate.


 


Section 4.9. Full Disclosure. All information heretofore
furnished by the Borrower or any other Loan Party to the Administrative Agent
or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby or thereby is true and accurate in all material
respects on the date as of which such information is stated or certified; provided
that, with respect to projected financial information, the Borrower represents
and warrants only that such information represents the Borrower’s expectations
regarding future performance, based upon historical information and reasonable
assumptions, it being understood, however, that actual results may differ from
the projected results described in the financial projections.  The Borrower has disclosed to the
Administrative Agent, in writing any and all facts which have or may have (to
the extent the Borrower can now reasonably foresee) a Material Adverse Effect.


 


Section 4.10. Solvency. On the Closing Date and after
giving effect to the transactions contemplated by the Loan Documents and the
New Credit Agreements occurring on the Closing Date, the Borrower and each
other Loan Party, taken as a whole, will be Solvent.


 


Section 4.11. Use of Proceeds. All proceeds of the Loans
will be used by the Borrower only in accordance with the provisions
hereof.  Neither the making of any Loan
nor the use of the proceeds thereof will violate or be inconsistent with the
provisions of regulations T, U, or X of the Federal Reserve Board.


 


Section 4.12. Governmental Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance by any Loan Party of
any Loan Document to which it is a party or the consummation of any of the
transactions contemplated thereby other than those that have already been duly
made or obtained and remain in full force and effect or those which, if not
made or obtained, would not have a Material Adverse Effect;


 


Section 4.13. Investment Company Act. Neither the Borrower,
any other Loan Party nor any Consolidated Subsidiary is (x) an “investment
company” or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended, or (y) subject
to any other federal or state law or regulation which purports to restrict or
regulate its ability to borrow money.


 


Section 4.14. Principal Offices. As of the Closing Date,
the principal office, chief executive office and principal place of business of
each Loan Party is 1114 Avenue of the Americas, New York, NY 10036.


 


Section 4.15. REIT Status. As of the date hereof, the
Borrower is qualified as a REIT.


 


43

















 


Section 4.16. Patents, Trademarks, etc. The Borrower and
each other Loan Party has obtained and holds in full force and effect all
patents, trademarks, servicemarks, trade names, copyrights and other such
rights, free from burdensome restrictions, which are necessary for the
operation of its business as presently conducted, the impairment of which is
likely to have a Material Adverse Effect.


 


Section 4.17. Judgments. As of the Closing Date, there are
no final, non-appealable judgments or decrees in an aggregate amount of
$10,000,000 or more entered by a court or courts of competent jurisdiction
against the Borrower, any other Loan Party or any Consolidated Subsidiary or,
to the extent such judgment would be recourse to the Borrower, any other Loan
Party or any Consolidated Subsidiary, any other Person (other than, in each
case, judgments as to which, and only to the extent, a reputable insurance
company has acknowledged coverage of such claim in writing or which have been
paid or stayed).


 


Section 4.18. No Default. No Event of Default or, to the
best of the Borrower’s knowledge, Default exists under or with respect to any
Loan Document and neither the Borrower nor any other Loan Party is in default
in any material respect beyond any applicable grace period under or with
respect to any other material agreement, instrument or undertaking to which it
is a party or by which it or any of its property is bound in any respect, the
existence of which default is likely to result in a Material Adverse Effect.


 


Section 4.19. Licenses, etc. Each of the Loan Parties has
obtained and does hold in full force and effect, all franchises, licenses,
permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and other consents and approvals which are necessary
for the operation of its businesses as presently conducted, the absence of
which is likely to have a Material Adverse Effect.


 


Section 4.20. Compliance with Law. To the Borrower’s
knowledge, each Loan Party and each of its assets are in compliance in all
material respects with all laws, rules, regulations, orders, judgments, writs
and decrees, the failure to comply with which is likely to have a Material
Adverse Effect.


 


Section 4.21. No Burdensome Restrictions. Except as may
have been disclosed by the Borrower in writing to the Banks prior to the
Closing Date or that would otherwise be permitted under the Loan Documents,
neither the Borrower nor any other Loan Party is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate or
partnership restriction, as the case may be, which, individually or in the
aggregate, is likely to have a Material Adverse Effect.


 


Section 4.22. Brokers’ Fees. Neither the Borrower nor any
other Loan Party has dealt with any broker or finder with respect to the
transactions contemplated by this Agreement or otherwise in connection with
this Agreement, and neither the Borrower nor any other Loan Party has done any
act, had any negotiations or conversation, or made any agreements or promises
which will in any way create or give rise to any obligation or liability for
the payment by the Borrower or any other Loan Party of any brokerage fee,
charge, commission or other compensation to any party with respect to the
transactions contemplated by the Loan Documents, 


 


44

















 


other than the fees payable to the Administrative
Agent and the Banks, and certain other Persons as previously disclosed in
writing to the Administrative Agent.


 


Section 4.23. Labor Matters. Except as disclosed on Schedule
4.6(a), there are no collective bargaining agreements or Multiemployer
Plans covering the employees of the Borrower, any other Loan Party or any
member of the ERISA Group, and neither the Borrower  nor any other Loan Party has suffered any
material strikes, walkouts, work stoppages or other material labor
difficulty within the last five years.


 


Section 4.24. Insurance. The Loan Parties currently
maintain 100% replacement cost insurance coverage (subject to customary
deductibles) in respect of each of their Real Property Assets, as well as
commercial general liability insurance (including, without limitation, “builders’
risk” where applicable) against claims for personal, and bodily injury and/or
death, to one or more persons, or property damage, as well as workers’
compensation insurance, in each case with respect to liability and casualty
insurance with insurers having an A.M. Best policyholders’ rating of not
less than A-/VII at the time of issuance or extension of any such coverage
policy in amounts no less than customarily carried by owners of properties
similar to, and in the same locations as, the Loan Parties’ Real Property
Assets; provided, however, 
that the foregoing A.M. Best policyholders’ rating requirement
shall not be required for (a) such insurance as tenants of Credit Tenant
Lease Assets and Other Real Estate Owned Assets are permitted or required
pursuant to applicable leases to obtain or maintain, (b) exposure under
existing insurance policies (but not renewals of any such policies) to
CV Starr, in a Lloyds Syndicate in an amount not to exceed $20,000,000 and
(c) liability and casualty insurance policies issued after the Closing
Date on Real Property Assets constituting not more than 5.0% of all Real
Property Assets owned by the Loan Parties with insurers having an A.M.
Best policyholders’ rating of less than A-/VII, but not less than B++/VII.


 


Section 4.25. Organizational Documents. The documents
delivered pursuant to Section 3.1(h) constitute, as of the Closing
Date, all of the organizational documents (together with all amendments and
modifications thereof) of each Loan Party. The Borrower represents that it has
delivered to the Administrative Agent true, correct and complete copies of each
such document.


 


Section 4.26. Unencumbered Assets and Indebtedness. As of
the date hereof, Schedule 4.26 accurately sets forth (i) total
Unencumbered Assets, (ii) all Unsecured Debt and (iii) all Secured
Debt, in each case as of December 31, 2008, on a pro forma basis after
giving effect to the incurrence of Loans hereunder and the loans under the New
Credit Agreements on the date hereof. All of the information set forth on Schedule
4.26 is true and correct in all material respects as of the date hereof.


 


Section 4.27. Ownership of Property;
Liens. The Borrower, each other Loan Party and each Collateral LLC owns the
Eligible Assets purported to be owned by it, as applicable, and none of the
Eligible Assets is subject to any Lien except as permitted by Section 5.15.


 


Section 4.28. Subsidiaries.  Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a) Schedule
4.28 sets forth the name and jurisdiction of incorporation of each
Collateral SPV and Collateral LLC and, as to each 


 


45

















 


such Collateral SPV and
Collateral LLC, the percentage of each class of equity interests owned by any
Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors’ qualifying shares) of
any nature relating to any equity interests of the Borrower or any Collateral
SPV or Collateral LLC, except as created by the Loan Documents.


 


Section 4.29. Security Documents.
The Security Agreement is effective to create in favor of the Collateral
Trustee, for the benefit of the Agents and the Banks, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof.  In the case of the Pledged
Stock described in the Security Agreement, when stock certificates representing
such Pledged Stock, if any, are delivered to the Collateral Trustee, and in the
case of the other Collateral described in the Security Agreement, when
financing statements and other filings specified on Schedule 4.29 in
appropriate form are filed in the offices specified on Schedule 4.29,
the Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the First Priority Secured Obligations (as
defined in the Collateral Trust Agreement), in each case prior and superior in
right to any other Lien (other than any Permitted Liens described in clauses
(a), (b) and (f) of the definition thereof set forth herein).


 


Section 4.30. Mortgages.  Each Mortgage, when executed and delivered as
required by and in accordance with Section 2.18, will be recorded in the
real property records of the applicable county and state in which the Mortgaged
Property encumbered thereunder is located. 
No Loan Party has created any Lien securing Indebtedness for money
borrowed against a Mortgaged Property that is a Mortgage-Eligible Asset that
would be prior to or superior in right to any Mortgage on such Mortgaged
Property.


 


ARTICLE V



 AFFIRMATIVE AND NEGATIVE COVENANTS


 


The Borrower covenants and agrees that, so
long as any Bank has any Commitment hereunder or any Obligation remains unpaid:


 


Section 5.1. Information. The Borrower shall deliver to
each of the Banks or post to Intralinks provided such information is not
otherwise publicly available:


 


(a)           as soon as available
and in any event within five (5) Business Days after the same is required
to be filed with the Securities and Exchange Commission (but in no event later
than 95 days after the end of each Fiscal Year of the Borrower) a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Year and the related consolidated statements of the Borrower’s
operations and consolidated statements of the Borrower’s cash flow for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year (if available), all reported in a manner acceptable to the
Securities and Exchange Commission on the Borrower’s Form 10-K and reported
on by PricewaterhouseCoopers LLP or other independent public accountants of
nationally recognized standing;


 


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(b)           (i) as soon as
available and in any event within five (5) Business Days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 50 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower), a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related consolidated statements of the Borrower’s operations
and consolidated statements of the Borrower’s cash flow for such quarter and
for the portion of the Borrower’s Fiscal Year ended at the end of such Fiscal
Quarter, all reported in the form provided to the Securities and Exchange
Commission on the Borrower’s Form 10-Q, together with (ii) such other
information reasonably requested by the Administrative Agent or any Bank;


 


(c)           simultaneously with the
delivery of each set of financial statements referred to in clauses (a) and
(b) above, (I) a certificate of a financial officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Section 5.10 on the date of
such financial statements and (ii) certifying (x) that such financial
statements fairly present the financial condition and the results of operations
of the Borrower on the dates and for the periods indicated, on the basis of
GAAP, with respect to the Borrower subject, in the case of interim financial
statements, to normally recurring year-end adjustments, and (y) that such
officer has reviewed the terms of the Loan Documents and has made, or caused to
be made under his or her supervision, a review in reasonable detail of the
business and condition of the Borrower during the period beginning on the date
through which the last such review was made pursuant to this Section 5.1(c) (or,
in the case of the first certification pursuant to this Section 5.1(c),
the Closing Date) and ending on a date not more than ten (10) Business
Days prior to, but excluding, the date of such delivery and that (1) on
the basis of such financial statements and such review of the Loan Documents,
no Event of Default existed under Section 6.1(b) with respect to Section 5.10
or Section 5.17 at or as of the date of said financial statements, or with
respect to Section 5.10(a), at any time, and (2) on the basis of such
review of the Loan Documents and the business and condition of the Borrower, to
the best knowledge of such officer, as of the last day of the period covered by
such certificate no Default or Event of Default under any other provision of Section 6.1
occurred and is continuing or, if any such Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof and, the
action the Borrower proposes to take in respect thereof (and such certificate
shall set forth the calculations required to establish the matters described in
clauses (1) and (2) above) and (II) updated Cash Flow
Projections;


 


(d)           (i) within five (5) Business
Days after any officer of the Borrower obtains knowledge of any Default or
Event of Default, if such Default or Event of Default is then continuing, a
certificate of the chief financial officer, or other executive officer of the
Borrower, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto; and (ii) promptly and
in any event within five (5) Business Days after the Borrower obtains
knowledge thereof, notice of (x) any litigation or governmental proceeding
pending or threatened against the Borrower or any Consolidated Subsidiary or
its directly or indirectly owned Real Property Assets as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, is likely to individually or in the aggregate, result in a Material
Adverse Effect, and (y) any other event, act or condition which is likely
to result in a Material Adverse Effect;


 


47
















 


(e)           promptly upon the
mailing thereof to the shareholders of the Borrower generally, copies of all
proxy statements or any other materials so mailed;


 


(f)            promptly and in any
event within thirty (30) days, if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any “reportable event” (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or makes any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the posting of a bond
or other security, and, in the case of any occurrence covered by any of clauses
(i) through (vii) above, which occurrence would reasonably be
expected to result in a Material Adverse Effect, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting forth
details as to such occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to take;


 


(g)           promptly and in any
event within ten (10) days after the Borrower obtains actual knowledge of
any of the following events, a certificate of the Borrower, executed by an
officer of the Borrower, specifying the nature of such condition, and the
Borrower’s or, if the Borrower has actual knowledge thereof, the Environmental
Affiliate’s proposed initial response thereto: (i) the receipt by the
Borrower, or any of the Environmental Affiliates of any communication (written
or oral), whether from a governmental authority, citizens group, employee or
otherwise, that alleges that the Borrower, or any of the Environmental
Affiliates, is not in compliance with applicable Environmental Laws, and such
noncompliance is likely to have a Material Adverse Effect, (ii) the
existence of any Environmental Claim pending against the Borrower or any
Environmental Affiliate and such Environmental Claim is likely to have a Material
Adverse Effect or (iii) any release, emission, discharge or disposal of
any Material of Environmental Concern that is likely to form the basis of any
Environmental Claim against the Borrower or any Environmental Affiliate which
in any such event is likely to have a Material Adverse Effect;


 


(h)           promptly and in any
event within five (5) Business Days after receipt of any notices or
correspondence from any company or agent for any company providing insurance
coverage to the Borrower or any other Loan Party relating to any loss which is
likely to result in a Material Adverse Effect, copies of such notices and
correspondence;


 


48

















 


(i)            within ten (10) Business
Days after the end of each fiscal month, a statement of all Secured Debt as
well as the total amount of Unsecured Debt (in each case, on a Subsidiary by
Subsidiary basis), based upon the best available information at such time as
certified by a financial officer of the Borrower;


 


(j)            promptly and in any event
within ten (10) days after an event or events of default with respect to
Non-Recourse Indebtedness in an aggregate amount equal to or greater than
$100,000,000 of the Borrower, its Consolidated Subsidiaries and/or the Borrower’s
Share of Non-Recourse Indebtedness of Investment Affiliates, the Borrower shall
deliver to the Administrative Agent a recalculation of the Consolidated
Tangible Net Worth, reflecting the effects of such event or events of default,
as well as any other changes in the Borrower’s Consolidated Tangible Net Worth;


 


(k)           as soon as available
and in any event within twenty (20) days after the end of each fiscal month, a
Borrowing Base Certificate duly executed by an officer of the Borrower setting
forth a calculation of the aggregate Borrowing Base Value of the Collateral and
any other Listed Eligible Assets as of the end of the most recent fiscal month,
based upon the best available information at such time as certified by a
financial officer of the Borrower, provided that for purposes of such
calculation, the proviso to the definition of “Coverage Ratio” shall be
applicable;


 


(l)            as soon as available
and in any event within twenty (20) days after the end of each Fiscal Quarter,
a Collateral Report, based upon the best available information at such time as
certified by a financial officer of the Borrower; and


 


(m)          from time to time such
additional information regarding any of the Collateral or Eligible Assets or
the financial condition or operations or investments of the Borrower and its
Subsidiaries, in each case, as the Administrative Agent, at the request of any
Bank, may reasonably request in writing, so long as disclosure of such
information could not result in a violation of, or expose the Borrower or its
Subsidiaries to any material liability under, any applicable law, statute,
ordinance or regulation or any agreements with unaffiliated third parties that
are binding on the Borrower or any of its Subsidiaries or on any Property of
any of them.


 


Section 5.2. Payment of Obligations. The Borrower and its Consolidated
Subsidiaries will pay and discharge, at or before maturity, all their
respective material obligations and liabilities including, without limitation,
any such material obligations (a) pursuant to any agreement by which it or
any of its properties is bound and (b) in respect of federal, state and
other taxes, in each case where the failure to so pay or discharge such
obligations or liabilities is likely to result in a Material Adverse
Effect, and will maintain in accordance with GAAP, appropriate reserves for the
accrual of any of the same.


 


Section 5.3. Maintenance of Property; Insurance; Leases.


 


(a)           The Borrower shall
keep, and shall cause each Consolidated Subsidiary to keep, all property useful
and necessary in its business, including without limitation each of its Real
Property Assets (for so long the same constitutes a Real Property Asset), in
good repair, 


 


49

















 


working order and condition,
ordinary wear and tear excepted, in each case where the failure to so maintain
and repair will have a Material Adverse Effect.


 


(b)           The Borrower shall
maintain, or cause to be maintained, insurance described in Section 4.24
hereof with insurers meeting the qualifications described therein, which
insurance shall in any event not provide for less coverage than insurance
customarily carried by owners of properties similar to, and in the same
locations as, the Loan Parties’ Real Property Assets.  The Borrower shall deliver to the
Administrative Agent (i) upon the reasonable request of the Administrative
Agent from time to time certificates of insurers evidencing the insurance
carried, (ii) within five (5) days of receipt of notice from any
insurer a copy of any notice of cancellation or material change in coverage
required by Section 4.24 from that existing on the date of this Agreement
and (iii) forthwith, notice of any cancellation or nonrenewal (without
replacement) of coverage by the Borrower or any Loan Party.


 


Section 5.4. Maintenance of Existence. The Borrower shall
and shall cause each of its Consolidated Subsidiaries to preserve, renew and
keep in full force and effect, its corporate existence and its rights,
privileges and franchises necessary for the normal conduct of its business
unless the failure to maintain such rights and franchises does not have a
Material Adverse Effect.


 


Section 5.5. Compliance with Laws. The Borrower shall, and
shall cause its Consolidated Subsidiaries to, comply in all material respects
with all applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws,
and all zoning and building codes with respect to its Real Property Assets and
ERISA and the rules and regulations thereunder and all federal securities
laws) except where the necessity of compliance therewith is contested in good
faith by appropriate proceedings or where the failure to do so will not have a
Material Adverse Effect or expose the Administrative Agent or Banks to any
material liability therefor.


 


Section 5.6. Inspection of Property, Books and Records. The
Borrower shall, and shall cause each of its Consolidated Subsidiaries to, keep
proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and
activities in conformity with GAAP, modified as required by this Agreement and
applicable law; and shall permit representatives of any Bank, at such Bank’s
expense, or upon the occurrence and during the continuance of any Event of
Default, at the Borrower’s expense (but subject to the reimbursement
limitations in Section 9.3), so long as disclosure of such information
could not result in a violation of, or expose the Borrower or any of its
Subsidiaries to any material liability under, any applicable law, ordinance or
regulation or any agreements with unaffiliated third parties that are binding
on the Borrower or any of
its Subsidiaries, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers and
independent public accountants, all at such reasonable times during normal
business hours, upon reasonable prior notice and as often as may reasonably be
desired.  Upon the occurrence and
during the continuance of any Event of Default, representatives of any Bank permitted to review such books or engage
in such discussions shall include consultants, accountants, auditors and any
other representatives that any Bank deems necessary in connection with any
workout or proposed workout of the Loans.


 


50

















 


Section 5.7. Existence. The
Borrower shall do or cause to be done, all things necessary to preserve
and keep in full force and effect its and its Consolidated Subsidiaries’
existence and its patents, trademarks, servicemarks, tradenames, copyrights,
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditation, easements, rights of way and other rights, consents and
approvals the nonexistence of which is likely to have a Material Adverse
Effect.


 


Section 5.8. Deposit Accounts. (a)  The Borrower shall
cause, within 90 days after the Closing Date, all payments in respect of any
Loan Assets (net of any portion thereof attributable to any portion of such
Loan Assets beneficially owned by third parties) included in the Collateral to
be directed to deposit accounts maintained by the Collateral SPVs with the
Administrative Agent (each such account a “Collateral SPV Deposit Account”),
and all payments on account of assets owned by the Collateral LLCs (net of any
portion thereof attributable to any portion of such assets beneficially owned
by third parties) to be directed to deposit accounts maintained by the
Collateral LLCs with the Administrative Agent (each such account a “Collateral
LLC Deposit Account”).


 


(b)           The Borrower shall cause each Collateral LLC to transfer all such
amounts held in any Collateral LLC Deposit Account, within 5 Business Days of
receipt thereof, to a Collateral SPV Deposit Account and any such transfer
shall be deemed to be a cash dividend or distribution on account of the Capital
Stock (as defined in the Collateral Trust Agreement) of such Collateral LLC for
purposes of determining the Collateral (including for the avoidance of doubt,
the application of proceeds pursuant to Section 5.3 of the Security
Agreement).  Other than the transfer of
all such amounts held in any Collateral LLC Deposit Account pursuant to the
preceding sentence, the Loan Parties shall have no right to withdraw or
otherwise direct disposition of funds in any Collateral LLC Deposit Account.


 


(c)           Any amounts held in
Collateral SPV Deposit Accounts may be released to or as directed by the
Collateral SPVs on a daily basis except in the following cases: (i) if  a Material Default or Event of Default shall
have occurred and be continuing on any such date, the amounts held in the
Collateral SPV Deposit Accounts may only be used for (x) payments and
prepayments of the Loans as provided for hereunder, and (y) transfers to
the Collateral Account maintained under the Collateral Trust Agreement or (ii) if
a Principal Collateral Payment Event shall have occurred and be continuing on
any such date, Principal Collateral Payments shall be released from the
Collateral SPV Deposit Accounts solely for application toward the prepayment of
the Loans in accordance with Section 2.10. 
The Borrower hereby agrees that (A) it will not request, and will
not permit any Collateral SPV or Collateral LLC to request, any withdrawals
from the accounts described in this Section 5.8 not permitted hereunder
and under the terms of the Security Agreement and (B) JPMorgan Chase Bank,
N.A. shall not be required to release any amounts requested in violation of the
terms hereof or of the Security Agreement and shall not be liable to the
Borrower or any Affiliate thereof for such failure to release any such funds.


 


Section 5.9. Independent Director.  The board of directors, board of managers, or
other equivalent governing body of each Collateral SPV and each Collateral LLC
shall include at least one special, independent director or member (or
equivalent thereof), appointed by the Administrative Agent, whose consent shall
be required for (i) any bankruptcy or insolvency filing by the relevant
Collateral SPV or Collateral LLC, as the case may be, (ii) the transfer of



 


51

















 


any membership or other equity interests therein
(other than the sale of such membership or equity interests in a transaction
permitted under the Loan Documents) or (iii) encumbering any asset owned
by such Collateral SPV or Collateral LLC with a real property mortgage or deed
of trust, as applicable, or a security agreement, pledge agreement or any
similar agreement creating a Lien in respect thereof, except as permitted under
the Loan Documents (including as a result of any consent, amendment, waiver or
other modification obtained in accordance with the terms of the Loan
Documents).


 


Section 5.10. Financial Covenants and Restricted Payments.


 


(a)           Minimum Consolidated
Tangible Net Worth. The Consolidated Tangible Net Worth of the Borrower
determined in conformity with GAAP shall at no time be less than
$1,500,000,000.


 


(b)           Total Indebtedness
to Net Worth. As of the last day of each Fiscal Quarter, the ratio of Total
Indebtedness to the Borrower’s Net Worth shall not exceed 5.00 to 1.00.


 


(c)           EBITDA to Fixed
Charges Ratio. As of the last day of each Fiscal Quarter, the Fixed Charge
Coverage Ratio shall not be less than 1.00 to 1.00.


 


(d)           Unencumbered Pool.
The ratio of the Value of the Unencumbered Assets to Unsecured Debt, as of the
last day of each Fiscal Quarter, shall not be less than 1.20 to 1.00.


 


(e)           Dividends; Other
Restricted Payments. (i)  The Borrower shall not, and shall not permit
its Subsidiaries to, pay any dividends; provided that, (x) in
any Fiscal Year in which the Borrower is qualified as a REIT, the Borrower may
pay dividends in an amount, as determined on an aggregate annual basis as of
the end of any such Fiscal Year, not to exceed 100% of the Borrower’s REIT
taxable income for such Fiscal Year calculated prior to deducting dividends
paid or payable by the Borrower, (y) any Subsidiary of the Borrower may
pay dividends to the Borrower or to any other Subsidiary of the Borrower and (z) the
Borrower may pay dividends to holders of its preferred equity in an aggregate
amount in any Fiscal Year not to exceed the stated dividend amount payable
pursuant to the terms of such preferred equity.


 


(ii)           The
Borrower shall not, and shall not permit its Subsidiaries to, make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
equity interests in the Borrower, or of any warrants, options or other rights
or obligations to purchase or acquire any such equity interests, or make any
other distribution in respect to any such equity interests, in each case,
whether now or hereafter outstanding, either directly or indirectly, whether in
cash or property or in obligations of the Borrower or any of its Subsidiaries,
except that the Borrower or any Subsidiary may make Permitted Share Repurchases
so long as (x) no Default or Event of Default has occurred and is
continuing at the time of such Permitted Share Repurchase, or would result
therefrom, and (y) no Principal Collateral Payment Event shall have
occurred and be continuing.


 


Section 5.11. Restriction on
Fundamental Changes. (a) The Borrower shall not, and shall not permit
any Collateral SPV or Collateral LLC to, enter into any merger or consolidation
without obtaining the prior written consent thereto of the Required Banks,
unless 


 


52

















 


(i) in
the case of any such merger or consolidation involving (u) the Borrower,
the Borrower is the surviving entity, (v) iStar Tara Holdings LLC, iStar
Tara Holdings LLC is the surviving entity (provided that iStar Tara LLC and any
other Collateral SPV owned by iStar Tara Holdings LLC, shall not be permitted
to merge or consolidate with or into iStar Tara Holdings LLC), (w) a
Collateral SPV (other than iStar Tara Holdings LLC), a Collateral SPV is the
surviving entity, (x) a Collateral LLC, a Collateral LLC is the surviving
entity, (y) a Grantor, a Grantor is the surviving entity and (z) a
Guarantor, a Guarantor is the surviving entity, and (ii) in each case, the
same will not result in the occurrence of a Material Default or an Event of
Default.  The Borrower shall not, and
shall not permit any Collateral SPV or Collateral LLC to, liquidate, wind-up or
dissolve (or suffer any liquidation or dissolution), discontinue its business
or convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of its business or property,
whether now or hereafter acquired, other than to any Collateral SPV (or, in the
case of any Collateral LLC, to any other Collateral LLC or in connection with
any sale of all or substantially all of its assets or any payment or prepayment
in full or other monetization in full of its assets).


 


(b)           The Borrower shall not,
and shall not permit any other Loan Party or any Pledged Collateral LLC to,
amend its articles of incorporation, bylaws, or other organizational documents
in any manner that would be materially adverse to the Banks without the
Required Banks’ consent.


 


Section 5.12. Changes in Business. The Borrower’s primary
business shall not be substantially different from that conducted by the
Borrower on the Closing Date and shall include ownership and management of
Credit Tenant Lease Assets and Loan Assets. The Borrower shall carry on its
business operations through the Borrower and its Consolidated Subsidiaries and
its Investment Affiliates.


 


Section 5.13.  Borrower
Status.  The Borrower shall at all
times remain a publicly traded company listed for trading on the New York Stock
Exchange (or another nationally recognized stock exchange (for the avoidance of
doubt, the NASDAQ stock quotation system or any successor thereto shall be
considered a nationally recognized exchange)).


 


Section 5.14. Other Indebtedness. (a)  The Borrower
shall not incur or maintain or permit any Secured Debt (excluding the Secured
Bank Facilities or the Secured Exchange Notes) which is Recourse Debt in excess
of an amount equal to 20% of Consolidated Tangible Net Worth. Any Indebtedness
maintained or incurred by any Subsidiary of the Borrower that is Recourse Debt
of such Subsidiary shall be deemed to be Secured Debt for purposes of this Section 5.14
and Section 5.10; provided that Indebtedness of any Guarantor that is not
secured shall not be so deemed to be Secured Debt.


 


(b)           The Borrower shall not
permit any Guarantor or Pledged Collateral LLC to incur any Indebtedness other
than (i) Indebtedness evidenced by the Loan Documents, (ii) Indebtedness
in respect of the other Secured Bank Facilities and (iii) Indebtedness in
respect of the Secured Exchange Notes, under (x) a guarantee
containing a limitation on liability substantially equivalent to the limitation
included in Section 2.1(b) of the Guarantee Agreements in respect of
each of the Second Priority Credit Agreements (or, in the case of Secured
Exchange 


 


53

















 


Notes sharing a third priority
security interest under the Security Agreement, containing a similar limitation
taking into account such third priority entitlement) and (y) the
Collateral Documents.


 


(c)           The Borrower shall not
consent to or vote in favor of (and shall not permit any Subsidiary to consent
to or vote in favor of) the incurrence of any Indebtedness by any Collateral
LLC or any Venture LLC, in each case, owned directly or indirectly by any
Guarantor.


 


(d)           The Borrower shall not
issue Second Priority Secured Exchange Notes in an aggregate face amount in
excess of $1,000,000,000.


 


Section 5.15. Liens. (a)  The Borrower shall not, nor
shall it permit any Subsidiary to, create, incur, assume or suffer to exist any
Lien upon any of its property, whether now owned or hereafter acquired, except
for:


 


(i)                    Permitted Liens;


 


(ii)                   Liens on the Collateral securing
Indebtedness pursuant to the Second Priority Bank Facilities, subject to the
terms of the Collateral Trust Agreement;


 


(iii)                  Liens on the Collateral, subject to
the terms of the Collateral Trust Agreement, securing Indebtedness pursuant to
the Second Priority Secured Exchange Notes in an aggregate principal amount not
to exceed $1,000,000,000, so long as the Borrower shall be in compliance, on a
pro forma basis after giving effect to the granting of any such Lien and any
contemporaneous pledge of additional Collateral pursuant to the Loan Documents,
with Section 5.17;


 


(iv)                  Liens on the Collateral, subject to
the terms of the Collateral Trust Agreement, securing Indebtedness pursuant to
the Junior Priority Secured Exchange Notes;


 


(v)                   Liens on assets of the Borrower or
any of its Subsidiaries (including Liens incurred pursuant to clause (y)(B) of
the proviso to clause (vi) of this Section 5.15) with a book value
not to exceed $750,000,000 at any one time outstanding; and


 


(vi)                  Liens existing as of the Closing Date
and listed on Schedule 1.1D and any extensions or replacements thereof; provided
that in connection with any such extension or replacement, (x) the advance
rate for any such Indebtedness secured by Liens pursuant to this clause (vi) is
not decreased by more than 15% from the rate in effect on the Closing Date and (y) the
amount of Indebtedness secured by Liens pursuant to this clause (vi) is
not increased, except to the extent that (A) no additional assets become
subject to Liens as a result of such increase or (B) such increase is
secured by Liens on additional assets incurred pursuant to clause (v) of
this Section 5.15;


 


provided that (x) in the case
of each of clauses (i) (other than with respect to any Permitted Liens
described in clause (a), (b) or (f) of the definition thereof set
forth herein), (v) 


 


54

















 


and (vi) of this Section 5.15, such assets
to be encumbered shall not constitute (A) Collateral, (B) Specified
Listed Eligible Assets, (C) assets of a Collateral LLC or (D) Fremont
Assets, (y) in no event shall the Borrower create, incur, assume or suffer
to exist, or permit any Subsidiary to create, incur, assume or suffer to exist,
any Lien upon any of its property to secure any public notes of the Borrower
outstanding as of the Closing Date or any notes into which such public notes
may be exchanged (other than any Secured Exchange Notes) and (z) any
Secured Exchange Notes shall only be secured by the Collateral.


 


(b)           The Borrower shall not
consent to or vote in favor of (and shall not permit any Subsidiary to consent
to or vote in favor of) the incurrence of any Liens on any assets of any
Collateral LLC or Venture LLC, in each case, owned directly or indirectly by
any Guarantor.


 


Section 5.16. Prepayments of Secured Exchange Notes, Other
Notes; Second Priority Bank Facilities; Existing Credit Agreements and
Amendments. (a)  The Borrower shall not and shall not permit any of
its Subsidiaries to, make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
satisfy, defease or refinance (including with Cash or Cash Equivalents or
otherwise) or segregate funds with respect to (i) any Secured Exchange
Notes or (ii) any notes of the Borrower issued prior to the Closing Date,
in the case of each of the foregoing clauses (i) and (ii), that has a
maturity date later than the Termination Date, or any refinancing of any of the
foregoing; provided, however, that (A) the Borrower or any
Subsidiary may make Permitted Note Repurchases so long as (x) no Default
or Event of Default has occurred and is continuing at the time of such
Permitted Note Repurchase, or would result therefrom and (y) no Principal
Collateral Payment Event shall have occurred and be continuing and (B) the
Borrower or any Subsidiary may refinance any Indebtedness described in the
foregoing clauses (i) and (ii) with Secured Exchange Notes and new
unsecured notes of the Borrower with maturities, in each case, later than December 31,
2012 (including, for the avoidance of doubt, refinancings consummated with the
net proceeds of such new Indebtedness or by way of exchange).


 


(b)           The Borrower shall not
and shall not permit any of its Subsidiaries to, make or offer to make any
optional or voluntary payment, prepayment or repurchase of or otherwise
optionally refinance (including with Cash or Cash Equivalents or otherwise) or
segregate funds with respect to any Second Priority Bank Facility, or any
refinancing thereof; provided, that, notwithstanding anything to the
contrary contained herein, the Borrower shall be permitted to prepay or
repurchase revolving loans outstanding under the Second Priority Bank
Facilities so long as (x) no Default or Event of Default has occurred and (y) there
shall be no corresponding reduction of the commitments thereunder.


 


(c)           The Borrower shall not
and shall not permit any of its Subsidiaries to, make or offer to make any
optional or voluntary payment, prepayment or repurchase of or otherwise
optionally refinance (including with Cash or Cash Equivalents or otherwise) or
segregate funds with respect to either Existing Credit Agreement, or any
refinancing thereof.


 


(d)           The Borrower shall not
and shall not permit any of its Subsidiaries to amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of any of the Secured Exchange Notes that would
result in the maturity of such Secured Exchange Notes being earlier than the
maturity that would 


 


55

















 


have been permitted at the time
of the relevant exchange pursuant to Section 5.16(a) or the
definition of “Secured Exchange Notes” set forth herein.


 


Section 5.17. Coverage Test. The Borrower shall not permit
the Coverage Ratio to be (x) at any time prior to the issuance of any
Second Priority Secured Exchange Notes, less than 1.20 to 1.00 or (y) at
any time from and after the issuance of any Second Priority Secured Exchange
Notes, less than 1.30 to 1.00 (each such Coverage Ratio requirement, a “Coverage
Test”).


 


Section 5.18. Forward Equity Contracts. The Borrower shall
not enter into any forward equity contracts.


 


Section 5.19. Restrictive Agreements.  The Borrower shall not, and shall not permit
any Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of such Person or any of its subsidiaries
to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Borrower or any other Subsidiary or to guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof pursuant to leases, participation
agreements, co-lending (or analogous) agreements, intercreditor (or analogous)
agreements or contracts, governing documents pertaining to Venture LLCs and
documents evidencing, securing, governing and/or guarantying any asset which
restrictions and conditions (x) are not unusual for similar transactions
in the relevant market and (y) when taken as a whole, would not have a
material adverse effect on the Banks’ interests in the Collateral (it being
understood, however, that the foregoing shall apply to any extension, renewal,
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement
if such restrictions or conditions apply only to the property or assets
securing such Indebtedness and (v) clause (a) of the foregoing shall
not apply to customary provisions in leases, participation agreements,
co-lending (or analogous) agreements, intercreditor (or analogous) agreements
and other contracts, in each case, restricting the assignment thereof.


 


Section 5.20. Limitation on Activities of the Collateral SPVs.  The
Borrower shall not permit any Collateral SPV to (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations other than ownership of Eligible Assets and anything
incidental thereto or (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (v) Indebtedness
incurred pursuant to Section 5.14(b), (w) nonconsensual obligations
imposed by operation of law, (x) obligations with respect to its equity
interests, (y) obligations in the ordinary course of business in the
operation of its assets and (z) the statutory liability of any general
partner for the liabilities of the limited partnership in which it is a general
partner.


 


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Section 5.21.  Transactions
with Affiliates.  The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Borrower and its
Subsidiaries not involving any other Affiliate and (c)  any payment of
dividends, other restricted payments or other transaction permitted by Section 5.10(e) or
Section 5.16.


 


Section 5.22. Post-Closing Covenants.  Within 90 days following the Closing Date, (i) the
Borrower shall deliver to the Collateral Trustee each Deposit Account Control
Agreement in connection with any Collateral SPV Deposit Accounts and any
Collateral LLC Deposit Accounts (including any Collateral SPV Deposit Accounts
or any Collateral LLC Deposit Accounts established for the purpose of holding
British Pound Sterling, Euros, Canadian Dollars or any other currency other
than Dollars) required to be delivered pursuant to the Security Agreement and
the Collateral Trust Agreement, in each case, in form and substance reasonably
acceptable to the Administrative Agent and the Collateral Trustee, and (ii) the
Borrower shall deliver to the Collateral Trustee any Deposit Account Control
Agreement or Securities Account Control Agreement in connection with the
Collateral Account (as defined in the Collateral Trust Agreement) (including
any Collateral Accounts established for the purpose of holding British Pound
Sterling, Euros, Canadian Dollars or any other currency other than Dollars)
required to be delivered pursuant to the Security Agreement and the Collateral
Trust Agreement, in each case, in form and substance reasonably acceptable to
the Administrative Agent and the Collateral Trustee.


 


ARTICLE VI



 DEFAULTS


 


Section 6.1. Events of Default. An “Event of Default” shall
have occurred if one or more of the following events shall have occurred and be
continuing:


 


(a)           the Borrower shall fail
to (i) pay when due any principal of any Loan, or (ii) the Borrower
shall fail to pay when due interest on any Loan or any fees or any other amount
payable to the Administrative Agent or the Banks hereunder and the same shall
continue for a period of five (5) days after the same becomes due; or


 


(b)           the Borrower shall fail
to observe or perform any covenant contained in Section 2.10, 2.18,
5.1(d)(i), 5.10, 5.11, 5.12, 5.13,
5.14, 5.15, 5.16, 5.17, 5.18, 5.19, 5.20, 5.21or 5.22 and, (i) solely in
the case of any failure to comply with Section 5.17, such failure shall continue unremedied for a
period of 10 days after written notice thereof has been given to the Borrower
by the Administrative Agent and (ii) solely in the case of any failure to
comply with Section 5.1(d)(i), such failure shall continue unremedied for
a period of 10 days; or


 


57
















 


(c)                                  the
Borrower or any Guarantor shall fail to observe or perform any covenant or
agreement contained in this Agreement or any other Loan Document (other than
those covered by clause (a), (b), (e), (f), (g), (h), (i), (l), (n) or (o) of
this Section 6.1) for 30 days after written notice thereof has been given
to the Borrower by the Administrative Agent; or if such default is of such a
nature that it cannot with reasonable effort be completely remedied within said
period of thirty (30) days such additional period of time as may be reasonably
necessary to cure same, provided the Borrower commences such cure within said
thirty (30) day period and diligently prosecutes same, until completion, but in
no event shall such extended period exceed ninety (90) days; or


 


(d)                                 any
representation, warranty, certification or statement that is made by the
Borrower or any Guarantor in this Agreement, in any other Loan Document or that
is contained in any certificate, financial statement or other document
delivered pursuant to this Agreement or any other Loan Document, shall prove to
have been incorrect in any material respect when made (or deemed made) and,
with respect to such representations, warranties, certifications or statements
not known by the Borrower at the time made or deemed made to be incorrect, the
defect causing such representation or warranty to be incorrect in a material
respect when made (or deemed made) is not removed, corrected or cured within
thirty (30) days after the earlier of written notice thereof from the
Administrative Agent to the Borrower and the Borrower otherwise obtains
knowledge thereof; or


 


(e)                                  the
Borrower or any Subsidiary shall default in the payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) of
any amount owing in respect of any Recourse Debt (other than the Obligations)
for which the aggregate outstanding principal amounts exceed $75,000,000 and
such default shall continue beyond the giving of any required notice and the
expiration of any applicable grace period and such default has not been waived,
in writing, by the holder of any such Recourse Debt; or the Borrower or any
Subsidiary shall default in the performance or observance of any obligation or
condition with respect to any such Recourse Debt or any other event shall occur
or condition exist beyond the giving of any required notice and the expiration
of any applicable grace period, if the effect of such default, event or
condition is to accelerate the maturity of any such indebtedness or to permit
(without any further requirement of notice or lapse of time) the holder or
holders thereof, or any trustee or agent for such holders, to accelerate the
maturity of any such indebtedness; or


 


(f)                                    the
Borrower or any Subsidiary of the Borrower or any Investment Affiliate of the
Borrower to which, either individually or in the aggregate, $100,000,000 or
more of the Borrower’s Consolidated Tangible Net Worth is attributable, shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action to
authorize any of the foregoing; or


 


58

















 


(g)                                 an
involuntary case or other proceeding shall be commenced against the Borrower or
any Subsidiary of the Borrower or any Investment Affiliate of the Borrower to
which, either individually or in the aggregate, $100,000,000 or more of the
Borrower’s Consolidated Tangible Net Worth is attributable, seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 90 days; or an order for relief shall be entered against the
Borrower, any such Subsidiary of the Borrower or any such Investment Affiliate
under the federal bankruptcy laws as now or hereafter in effect; or


 


(h)                                 one
or more final, non-appealable judgments or decrees in an aggregate amount of
$75,000,000 or more shall be entered by a court or courts of competent jurisdiction
against the Borrower or any Subsidiary of the Borrower (other than any judgment
as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing), and (i) any such
judgments or decrees shall not be stayed, discharged, paid, bonded or vacated
within ninety (90) days or (ii) enforcement proceedings shall be commenced
by any creditor on any such judgments or decrees; or


 


(i)                                     there
shall be a replacement of a majority of the Board of Directors of the Borrower
over a two-year period from the directors who constituted the Board of
Directors of the Borrower at the beginning of such period, and such replacement
shall not have been approved by a vote of at least a majority of the Board of
Directors of the Borrower then still in office who were either members of such
Board of Directors at the beginning of such period or whose election as a
member of such Board of Directors was previously so approved; or


 


(j)                                     any
Person or “group” (as such term is defined in applicable federal securities
laws and regulations) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than forty  percent (40%) of the aggregate ordinary
voting power represented by the issued and outstanding common shares of the
Borrower; or


 


(k)                                  if
any Termination Event with respect to a Plan or Multiemployer Plan shall occur
as a result of which Termination Event or Events any member of the ERISA Group
has incurred or may incur any liability to the PBGC or any other Person and the
sum (determined as of the date of occurrence of such Termination Event) of the
insufficiency of such Plan or Multiemployer Plan and the insufficiency of any
and all other Plans and Multiemployer Plans with respect to which such a
Termination Event shall occur and be continuing (or, in the case of a Multiple
Employer Plan with respect to which a Termination Event described in clause (ii) of
the definition of Termination Event shall occur and be continuing and in the
case of a liability with respect to a Termination Event which is or could be a
liability of the Borrower rather than a liability of the Plan, the liability of
the Borrower) is equal to or greater than $10,000,000 and which the Required
Banks reasonably determine will have a Material Adverse Effect; or


 


(l)                                     if,
any member of the ERISA Group shall commit a failure described in Section 302(f)(1) of
ERISA or Section 412(n)(1) of the Code and the amount of the lien
determined under Section 302(f)(3) of ERISA or Section 412(n)(3) of
the Code that could reasonably be expected to be imposed on any member of the
ERISA Group or their assets in 


 


59

















 


respect of such failure shall be equal to or
greater than $10,000,000 and which the Required Banks reasonably determine will
have a Material Adverse Effect; or


 


(m)                               any
assets of the Borrower shall constitute “assets” (within the meaning of ERISA
or Section 4975 of the Code, including but not limited to 29 C.F.R.
§ 2510.3-101 or any successor regulation thereto) of an “employee benefit
plan” within the meaning of Section 3(3) of ERISA or a “plan” within
the meaning of Section 4975(e)(1) of the Code; or


 


(n)                                 at
any time, for any reason the Borrower or any Guarantor repudiates in writing
its payment obligations under any Loan Document; or


 


(o)                                 the
guarantee of any Guarantor contained in the Guarantee Agreement shall cease,
for any reason, to be in full force and effect or any Guarantor shall so
assert, other than in connection with a merger of a Guarantor with and into the
Borrower, as permitted by Section 5.11, or any release of a Guarantor
pursuant to Section 9.17; or


 


(p)                                 any
Collateral Document shall not, for any reason, be in full force and effect (or
any Loan Party party to such Collateral Document shall so assert), or any
security interest purported to be created by any of the Collateral Documents
shall not be a valid, enforceable and perfected security interest having the
priority required by the Collateral Documents (or any Loan Party party to such
Collateral Document shall so assert) (other than (i) pursuant to the terms
of this Agreement or any other Loan Document (including any release pursuant to
the terms hereof or thereof) or (ii) as a result of acts or omissions by
the Administrative Agent or Collateral Trustee); or


 


(q)                                 at
any time (i) Borrower shall fail to directly own and control 100% of the
outstanding equity interests in iStar Tara Holdings LLC, (ii) iStar Tara
Holdings LLC shall fail to directly own and control 100% of the outstanding
equity interests in iStar Tara LLC, or (iii) iStar Tara LLC shall fail to
directly or indirectly own and control 100% of the outstanding equity interests
in any Collateral SPV (other than iStar Tara Holdings LLC) or any Collateral
LLC.


 


Section 6.2. Rights
and Remedies. (a) Upon the occurrence of any Event of Default
described in Section 6.1(f) or Section 6.1(g), the Commitments
shall immediately terminate and the unpaid principal amount of, and any and all
accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable,
with all additional interest from time to time accrued thereon and without
presentation, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower for itself; and upon the occurrence and
during the continuance of any other Event of Default, the Administrative Agent,
following consultation with the Banks, may (and upon the demand of the Required
Banks shall), by written notice to the Borrower, in addition to the exercise of
all of the rights and remedies permitted the Administrative Agent, the
Collateral Trustee and the Banks at law or equity or under any of the other
Loan Documents, declare that the Commitments are terminated and declare the
unpaid principal amount of and any and all accrued and unpaid interest on the
Loans and any and all accrued fees and other Obligations hereunder to be, and
the same shall thereupon be, immediately due and payable with all additional
interest from time to 


 


60

















 


time accrued thereon and (except as otherwise provided in the Loan
Documents) without presentation, demand, or protest or other requirements of
any kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by the Borrower for
itself.


 


(b)                                 Notwithstanding
anything to the contrary contained in this Agreement or in any other Loan
Document, the Administrative Agent and the Banks each agree that any exercise
or enforcement of the rights and remedies granted to the Administrative Agent
or the Banks under this Agreement or any other Loan Document or at law or in
equity with respect to this Agreement or any other Loan Documents shall be
commenced and maintained solely by the Administrative Agent, in each case on
behalf of the Administrative Agent, any other Agent and/or the Banks. The
Administrative Agent shall act at the direction of the Required Banks in
connection with the exercise of any and all remedies at law, in equity or under
any of the Loan Documents or, if the Required Banks are unable to reach
agreement after being afforded reasonable notice and opportunity to consent,
then, from and after an Event of Default, the Administrative Agent may pursue
such rights and remedies as it may determine.


 


Section 6.3. Notice
of Default. The Administrative Agent shall give notice to the Borrower
under Section 6.1(b), Section 6.1(c) and Section 6.1(d) promptly
upon being requested to do so by the Required Banks and shall thereupon notify
all the Banks thereof. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default (other
than nonpayment of principal of or interest on the Loans) unless the
Administrative Agent has received notice in writing from a Bank or the Borrower
referring to this Agreement or the other Loan Documents, describing such event
or condition.  Should the Administrative
Agent receive notice of the occurrence of a Default or Event of Default
expressly stating that such notice is a notice of a Default or Event of
Default, or should the Administrative Agent send the Borrower a notice of
Default or Event of Default, the Administrative Agent shall promptly give notice
thereof to each Bank.


 


Section 6.4. Distribution
of Proceeds after Default. Subject to the provisions of the Collateral
Trust Agreement and notwithstanding anything contained herein to the contrary,
from and after an Event of Default, to the extent proceeds are received by the
Administrative Agent, such proceeds shall be distributed to the Banks pro rata
in accordance with the unpaid principal amount of the Loans (giving effect to
any participations granted therein pursuant to Section 9.6).


 


ARTICLE
VII


 


THE AGENTS; CERTAIN MATTERS RELATING TO THE
BANKS


 


Section 7.1. Appointment
and Authorization. Each Bank irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf, including
execution of the other Loan Documents, and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto. Except as set forth in Section 7.8 hereof,
the provisions of this Article VII are solely for the benefit of the 


 


61

















 


Administrative Agent, the other Agents and the Banks, and the Borrower
shall not have any rights to rely on or enforce any of the provisions
hereof.  In performing its functions and
duties under this Agreement and the other Loan Documents, the Administrative
Agent shall act solely as an agent of the Banks and shall not assume and shall
not be deemed to have assumed any obligation toward or relationship of agency
or trust with or for the Borrower or any other Loan Party.  Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agents shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agents.


 


Section 7.2. Agency
and Affiliates. JPMorgan Chase Bank, N.A., Citicorp North America, Inc.
and Bank of America, N.A. each has the same rights and powers under this
Agreement as any other Bank and may exercise or refrain from exercising the
same as though it were not the Administrative Agent or a Syndication Agent, as
applicable, and JPMorgan Chase Bank, N.A., Citicorp North America, Inc.
and Bank of America, N.A. and each of their affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or affiliate of the foregoing as if they were not
the Administrative Agent or a Syndication Agent, as applicable, hereunder, and
the term “Bank” and “Banks” shall include each of JPMorgan Chase Bank, N.A.,
Citicorp North America, Inc. and Bank of America, N.A., each in its
individual capacity.


 


Section 7.3. Action
by Agents. The obligations of each of the Agents hereunder are only those
expressly set forth herein.  Without
limiting the generality of the foregoing, each of the Agents shall not be
required to take any action with respect to any Default or Event of Default,
except as expressly provided in Article VI.  The duties of each Agent shall be
administrative in nature.  Subject to the
provisions of Section 7.1, Section 7.5 and Section 7.6, each
Agent shall administer the Loans in the same manner as each administers its own
loans.


 


Section 7.4. Consultation
with Experts. As between any Agent on the one hand and the Banks on the
other hand, such Agent may consult with legal counsel (who may be counsel for
the Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.


 


Section 7.5. Liability
of Agents. As between each Agent on the one hand and the Banks on the other
hand, none of the Agents nor any of their affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with the
consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. As between each Agent on the
one hand and the Banks on the other hand, none of the Agents nor any of their
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement, any other
Loan Document, or any Borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of the Borrower or any other
Loan Party; (iii) the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to such Agent, or (iv) the
validity, effectiveness or genuineness of this Agreement, the other Loan 


 


62

















 


Documents or any other instrument or writing furnished in connection
herewith. As between each Agent on the one hand and the Banks on the other
hand, none of the Agents shall incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.


 


Section 7.6. Indemnification.
Each Bank shall, ratably in accordance with its Available Commitment and Loans
outstanding, indemnify the Agents and their affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including, without limitation, counsel
fees and disbursements), claim, demand, action, loss or liability (except such
as result from such indemnitee’s gross negligence or willful misconduct) that
such indemnitee may suffer or incur in connection with its duties as Agent
under this Agreement, the other Loan Documents or any action taken or omitted by
such indemnitee hereunder.  In the event
that any Agent shall, subsequent to its receipt of indemnification payment(s) from
Banks in accordance with this section, recoup any amount from the Borrower, or
any other party liable therefor in connection with such indemnification, such
Agent shall reimburse the Banks which previously made the payment(s) pro
rata, based upon the actual amounts which were theretofore paid by each
Bank.  Each Agent shall reimburse such
Banks so entitled to reimbursement within two (2) Business Days of its
receipt of such funds from the Borrower or such other party liable therefor.


 


Section 7.7. Credit
Decision. Each Bank acknowledges that it has, independently and without
reliance upon any Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon any Agent or any other Bank, 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 any
action under this Agreement.


 


Section 7.8. Successor
Agent.  The Administrative Agent may resign at
any time by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Administrative Agent, which successor Administrative Agent shall, provided no
Event of Default has occurred and is then continuing, be subject to the
Borrower’s approval, which approval shall not be unreasonably withheld or
delayed. If no successor Administrative Agent shall have been so appointed by
the Required Banks and approved by the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent which shall be the
Administrative Agent, who shall act until the Required Banks shall appoint an
Administrative Agent.  Any appointment of
a successor Administrative Agent by Required Banks or the retiring
Administrative Agent, pursuant to the preceding sentence shall, provided no
Event of Default has occurred and is then continuing, be subject to the
Borrower’s approval, which approval shall not be unreasonably withheld or
delayed.  Upon the acceptance of its
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Administrative
Agent and the retiring Administrative Agent, shall be discharged from its
duties and obligations hereunder. After any retiring Administrative Agent’s 


 


63

















 


resignation hereunder, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was the Administrative Agent.  For gross
negligence or willful misconduct, as determined by all the Banks (excluding for
such determination the Administrative Agent, in its capacity as a Bank), the
Administrative Agent may be removed at any time by giving at least thirty (30)
Business Days’ prior written notice to the Administrative Agent and the
Borrower.  Such resignation or removal
shall take effect upon the acceptance of appointment by a successor
Administrative Agent in accordance with the provisions of this Section 7.8.


 


Section 7.9. Consents
and Approvals. All communications from the Administrative Agent to the
Banks requesting the Banks’ determination, consent, approval or disapproval (i) shall
be given in the form of a written notice to each Bank, (ii) shall be
accompanied by a description of the matter or item as to which such
determination, approval, consent or disapproval is requested, or shall advise
each Bank where such matter or item may be inspected, or shall otherwise
describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Bank and to the extent not previously provided to
such Bank, written materials and a summary of all oral information provided to
the Administrative Agent by the Borrower in respect of the matter or issue to
be resolved, and (iv) shall include the Administrative Agent’s recommended
course of action or determination in respect thereof ).  Each Bank shall reply promptly, but in any
event within ten (10) Business Days after receipt of the request therefor
from the Administrative Agent (the “Bank Reply Period”). With respect to
decisions requiring the approval of the Required Banks, or all the Banks or the
Administrative Agent, as the case may be, shall submit its recommendation or
determination for approval of or consent to such recommendation or
determination to all Banks and upon receiving the required approval or consent
shall follow the course of action or determination of the Required Banks or all
the Banks, as the case may be.


 


ARTICLE
VIII


 


CHANGE IN CIRCUMSTANCES


 


Section 8.1. Basis
for Determining Interest Rate Inadequate or Unfair. If on or prior to the
first day of any Interest Period for any Euro-Currency Borrowing the
Administrative Agent or the Required Banks determine in good faith that
deposits in Dollars are not being offered in the relevant market for such
Interest Period or that the Euro-Currency Rate for such Interest Period will
not adequately reflect the cost to the Banks or the Required Banks, as the case
may be, of making, funding or maintaining such Euro-Currency Borrowing for such
Interest Period, the Administrative Agent shall forthwith give notice thereof
to the Borrower and the Banks, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks to make, continue, or convert Loans into,
Euro-Currency Loans in Dollars shall be suspended.  In such event, unless the Borrower notifies
the Administrative Agent on or before the second (2nd) Euro-Currency Business Day before, but excluding, the date of
any Euro-Currency Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such Borrowing shall instead
be made as a Base Rate Borrowing.


 


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Section 8.2. Illegality.
If, on or after the date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Currency Lending Office) with any request or directive (whether or not
having the force of law) made after the Closing Date of any such authority,
central bank or comparable agency shall make it unlawful for any Bank (or its
Euro-Currency Lending Office) to make, maintain or fund its Euro-Currency Loans
in a particular currency, the Administrative Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Administrative Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank in the case of the
event described above to make Euro-Currency Loans in such currency, shall be
suspended. With respect to Euro-Currency Loans, before giving any notice to the
Administrative Agent pursuant to this Section 8.2, such Bank shall
designate a different Euro-Currency Lending Office if such designation will
avoid the need for giving such notice and will not, in the reasonable judgment
of such Bank, be otherwise commercially disadvantageous to such Bank.


 


If at any time, it shall be unlawful for any
Bank to make, maintain or fund any of its Euro-Currency Loans, the Borrower
shall have the right, upon five (5) Business Days’ notice to the
Administrative Agent, to either (x) cause a bank, reasonably acceptable to
the Administrative Agent, to offer to purchase the Loans and/or Commitments of
such Bank for an amount equal to such Bank’s outstanding Loans and/or
Commitments, together with accrued and unpaid interest and fees thereon and all
other amounts due to such Bank are concurrently therewith paid in full to such
Bank, and to become a Bank hereunder, or obtain the agreement of one or more
existing Banks to offer to purchase the Loans and/or Commitments of such Bank
for such amount, which offer such Bank is hereby required to accept, or (y) to
repay in full all Loans then outstanding of such Bank, together with interest
due thereon and any and all fees and other amounts due hereunder, upon which
event, such Bank’s Commitments shall be deemed to be canceled pursuant to Section 2.9(c).


 


Section 8.3. Increased
Cost and Reduced Return.


 


(a)                                  If,
on or after the date hereof, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
made after the Closing Date of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System (but excluding with respect to any Euro-Currency Loan
any such requirement reflected in an applicable Euro-Currency Reserve
Percentage)), special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the interbank market any other condition
materially more burdensome in nature, extent or consequence than those in
existence as of the date hereof affecting such Bank’s Euro-Currency Loans or
its obligation to make Euro-Currency Loans, and the result of any of the 


 


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foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any
Euro-Currency Loan, or to reduce the amount of any sum received or receivable
by such Bank (or its Applicable Lending Office) under this Agreement or under
its Note with respect to such Euro-Currency Loans, by an amount reasonable
determined by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower shall pay to
such Bank such additional amount or amounts (based upon a reasonable allocation
thereof by such Bank to the Euro-Currency Loans made by such Bank hereunder) as
will compensate such Bank for such increased cost or reduction to the extent
such Bank generally imposes such additional amounts on other borrowers of such
Bank in similar circumstances.


 


(b)                                 If
any Bank shall have reasonably determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) made after the Closing Date of any
such authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank’s obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount reasonably deemed by such Bank to be material,
then from time to time, within 15 days after demand by such Bank (with a copy
to the Administrative Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction to the extent such Bank generally imposes such additional
amounts on other borrowers of such Bank in similar circumstances.


 


(c)                                  Each
Bank will promptly notify the Borrower and the Administrative Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
Notwithstanding the foregoing, if such Bank shall fail to notify the Borrower
of any such event within ninety (90) days following the end of the month during
which such event occurred, then the Borrower’s liability for any amounts
described in this Section incurred by such Bank as a result of such event
shall be limited to those attributable to the period occurring subsequent to
the ninetieth (90th)
day prior to, but excluding, the date upon which such Bank actually notified the
Borrower of the occurrence of such event. A certificate of any Bank claiming
compensation under this Section and setting forth a reasonably detailed
calculation of the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of demonstrable error.  In determining such amount, such Bank may use
any reasonable averaging and attribution methods.


 


(d)                                 If
at any time, any Bank has demanded compensation pursuant to this Section 8.3,
the Borrower shall have the right, upon five (5) Business Day’s notice to
the Administrative Agent to either (x) cause a Qualified Institution,
reasonably acceptable to the 


 


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Administrative Agent, to offer to purchase
the Commitments of such Bank for an amount equal to such Bank’s outstanding
Loans plus accrued interest, fees and other amounts due to such Bank, and to
become a Bank hereunder, or to obtain the agreement of one or more existing
Banks to offer to purchase the Commitments of such Bank for such amount, which
offer such Bank is hereby required to accept, or (y) to repay in full all
Loans then outstanding of such Bank, together with interest and all other
amounts due thereon, upon which event, such Bank’s Commitment shall be deemed
to be canceled pursuant to Section 2.9(c).


 


Section 8.4. Taxes.


 


(a)                                  Any
and all payments by the Borrower to or for the account of any Bank or the
Administrative Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise or similar taxes imposed on it, by the jurisdiction of such Bank’s
Applicable Lending Office or any political subdivision thereof or by any other
jurisdiction (or any political subdivision thereof) as a result of a present or
former connection between such Bank or the Administrative Agent and such other
jurisdiction or by the United States, except to the extent that such connection
would not have arisen but for entering into the transactions contemplated
hereby (all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as “Non-Excluded
Taxes”). If the Borrower shall be required by law to deduct any
Non-Excluded Taxes from or in respect of any sum payable hereunder or under any
Note, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including, without limitation, deductions
applicable to additional sums payable under this Section 8.4) such Bank or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.1, the
original or a certified copy of a receipt evidencing payment thereof.


 


(b)                                 In
addition, the Borrower agrees to pay any present or future stamp or documentary
taxes and any other excise or property taxes, or charges or similar levies
which arise from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)                                  In
the event that Non-Excluded Taxes not imposed on the Closing Date are imposed,
or Non-Excluded Taxes imposed on the Closing Date increase, the applicable Bank
shall notify the Administrative Agent and the Borrower of such event in writing
within a reasonable period following receipt of knowledge thereof.
Notwithstanding the foregoing, if such Bank shall fail to notify the Borrower
of any such event within ninety (90) days following the end of the month during
which such event occurred, then the Borrower’s liability for such 


 


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additional Non-Excluded Taxes incurred by
such Bank as a result of such event (including payment of a make whole amount
under Section 8.4(a)(i)) shall be limited to those attributable to the
period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the date upon which such Bank
actually notified the Borrower of the occurrence of such event.


 


(d)                                 The
Borrower agrees to indemnify each Bank and the Administrative Agent for the
full amount of Non-Excluded Taxes or Other Taxes (including, without
limitation, any Non-Excluded Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.4) paid by such Bank
or the Administrative Agent (as the case may be) and, so long as such Bank or
the Administrative Agent has promptly paid any such Non-Excluded Taxes or Other
Taxes, any liability for penalties and interest arising therefrom or with
respect thereto.  This indemnification
shall be made within 15 days from the date such Bank or the Administrative
Agent (as the case may be) makes demand therefor.


 


(e)                                  Each
Bank or the Administrative Agent that is a United States person for U.S.
federal income tax purposes, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank and the Administrative
Agent listed on the signature pages hereof and on or prior to the date on
which it becomes a Bank or the Administrative Agent in the case of each other
Bank or the Administrative Agent, shall provide the Borrower with two duly
completed copies of Internal Revenue Service Form W-9 or any successor
form prescribed by the Internal Revenue Service and shall provide the Borrower
with two further copies of any such form on or before the date any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered to the
Borrower.  Each Bank and the
Administrative Agent that is not a United States person for U.S. federal income
tax purposes, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank and the Administrative Agent listed on the
signature pages hereof and on or prior to the date on which it becomes a
Bank or the Administrative Agent in the case of each other Bank or the
Administrative Agent, shall provide the Borrower with two duly completed copies
of an Internal Revenue Service Form W-8BEN or W-8ECI, as applicable to
such Bank or the Administrative Agent, or any successor form prescribed by the
Internal Revenue Service, and shall provide the Borrower with two further
copies of any such form on or before the date that any such form expires or
becomes obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower.  A Bank that provides copies of the Internal Revenue
Service Form W-8BEN and that is legally entitled to claim the portfolio
interest exemption pursuant to Section 881(c) of the Internal Revenue
Code of 1986, as amended (the “Code”), shall further provide the
Borrower with, together with such Internal Revenue Service Form W-8BEN, a
written confirmation of its entitlement to such exemption.  To the extent that it is legally entitled to
do so, a Bank shall properly claim that such Bank is entitled to benefits under
an income tax treaty to which the United States is a party which reduces the rate
of, or eliminates, withholding tax on payments of interest hereunder.  A Bank that is not a United States person and
that grants a participating interest in a Loan or Commitment to any other
person shall provide, in addition to its own forms specified above, the
Borrower with two duly completed copies of the Internal Revenue Service form
applicable to such other person, each under the cover of an Internal Revenue
Service Form W-8IMY and a withholding statement prepared in the manner
prescribed by the Internal Revenue Service, or such other forms and/or
certificates that it is legally entitled to provide 


 


68

















 


evidencing such participant’s entitlement to
any exemption from, or reduction in the rate of U.S. withholding tax, and shall
provide the Borrower with two further copies of any such forms and statements
on or before the date any such forms or statements expire or become obsolete
and after the occurrence of any event requiring a change in the most recent form
or statement previously delivered to the Borrower.  If a Bank fails to timely and properly
provide or update such forms or statements or if the form or statement provided
by a Bank at the time such Bank first becomes a party to this Agreement
indicates a United States withholding tax rate in excess of zero, then backup
withholding or withholding tax resulting from the foregoing shall be considered
excluded from “Non-Excluded Taxes” as defined in Section 8.4(a).


 


(f)                                    Upon
reasonable demand by, and at the expense of, the Borrower to the Administrative
Agent or any Bank, the Administrative Agent or Bank, as the case may be, shall
deliver to the Borrower, or to such government or taxing authority as the
Borrower may reasonably direct, any form or document that may be required or
reasonably requested in writing in order to allow the Borrower to make a
payment to or for the account of such Bank or the Administrative Agent
hereunder or under any other Loan Document without any deduction or withholding
for or on account of any Non-Excluded Taxes or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand), with any such form
or document to be accurate and completed in a manner reasonably satisfactory to
the Borrower making such demand and to be executed and to be delivered with any
reasonably required certification.


 


(g)                                 For
any period with respect to which a Bank has failed to provide the Borrower with
the appropriate form pursuant to (and to the extent required by) Section 8.4(e) (unless
such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.4(d) with
respect to Non-Excluded Taxes imposed by the United States; provided, however,
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Non-Excluded Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as
such Bank shall reasonably request to assist such Bank to recover such Taxes so
long as the Borrower shall incur no cost or liability as a result thereof.


 


(h)                                 If
the Borrower is required to pay additional amounts to or for the account of any
Bank pursuant to this Section 8.4, then such Bank will change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the
reasonable judgment of such Bank, is not otherwise disadvantageous to such
Bank.


 


(i)                                     If
at any time, any Bank has demanded compensation pursuant to Section 8.3 or
Section 8.4 or the obligation of such Bank of make Euro-Currency Loans has
been suspended pursuant to Section 8.2, in any such case, the Borrower
shall have the right, upon five (5) Business Day’s notice to the Administrative
Agent to either (x) cause a Qualified Institution, reasonably acceptable
to the Administrative Agent, to offer to purchase the Commitments of such Bank
for an amount equal to such Bank’s outstanding Loans plus accrued interest,
fees and other amounts due to such Bank, and to become a Bank hereunder, or to
obtain the agreement of 


 


69

















 


one or more existing Banks to offer to
purchase the Commitments of such Bank for such amount, which offer such Bank is
hereby required to accept, or (y) to repay in full all Loans then
outstanding of such Bank, together with interest and all other amounts due
thereon, upon which event, such Bank’s Commitment shall be deemed to be
canceled pursuant to Section 2.9(c).


 


Section 8.5. Base
Rate Loans Substituted for Affected Euro-Currency Loans. If (i) the
obligation of any Bank to make Euro-Currency Loans has been suspended pursuant
to Section 8.2 or (ii) any Bank has demanded compensation under Section 8.3
or Section 8.4 with respect to its Euro-Currency Loans and the Borrower
shall, by at least five Business Days’ prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:


 


(a)                                  the
Borrower shall be deemed to have delivered a Notice of Interest Rate Election
with respect to such affected Euro-Currency Loans and thereafter all Loans
which would otherwise be made by such Bank to the Borrower as Euro-Currency
Loans shall be made instead as Base Rate Loans; and


 


(b)                                 after
each of its Euro-Currency Loans has been repaid, all payments of principal
which would otherwise be applied to repay such Euro-Currency Loans shall be
applied to repay its Base Rate Loans instead; and


 


(c)                                  the
Borrower will not be required to make any payment which would otherwise be
required by Section 2.13 with respect to such Euro-Currency Loans
converted to Base Rate Loans pursuant to clause (a) above.


 


ARTICLE
IX


 


MISCELLANEOUS


 


Section 9.1. Notices.
All notices, requests and other communications to any party hereunder shall be
in writing (including bank wire, facsimile transmission followed by telephonic
confirmation or similar writing) and shall be given to such party:  (x) in the case of the Borrower and the
Administrative Agent, at its address or facsimile number set forth on Exhibit H
attached hereto with duplicate copies thereof, in the case of the Borrower, to
the Borrower, at its address set forth on the signature page hereof, to
its General Counsel and Chief Financial Officer, (y) in the case of any
Bank, at its address or facsimile number set forth in its Administrative Questionnaire
or (z) in the case of any party, such other address or facsimile number
and/or email address as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower.  Each such notice, request or other
communication shall be effective (i) if given by telex or facsimile
transmission, when such facsimile is transmitted to the facsimile number
specified in this Section and the appropriate answerback or facsimile
confirmation is received, (ii) if given by certified registered mail,
return receipt requested, with first class postage prepaid, addressed as
aforesaid, upon receipt or refusal to accept delivery, (iii) if given by a
nationally recognized overnight carrier, 24 hours after such communication is
deposited with such carrier with postage prepaid for next day delivery, or (iv) if
given by any 


 


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other means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article II or Article VIII
shall not be effective until actually received.


 


Section 9.2. No
Waivers. No failure or delay by the Administrative Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.


 


Section 9.3. Expenses;
Indemnification.


 


(a)                                  The
Borrower shall pay within thirty (30) days after written notice from the
Administrative Agent or any Joint Lead Arranger, (i) all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including,
without limitation, reasonable and documented fees and disbursements of special
counsel Simpson Thacher & Bartlett LLP ) or such Joint Lead Arranger,
as applicable, in connection with any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder, (ii) all
reasonable and documented fees and disbursements of special counsel in
connection with the syndication of the Loans, and (iii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent, each Joint Lead Arranger and each Bank, including,
without limitation, reasonable and invoiced fees and disbursements of counsel
for the Administrative Agent, each of the Joint Lead Arrangers and each of the
Banks, in connection with the enforcement of the Loan Documents and the
instruments referred to therein and such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom
(provided, however, that the attorneys’ fees and disbursements for which the
Borrower is obligated under this subsection (a)(iii) shall be limited to
the reasonable and invoiced non-duplicative fees and disbursements of (A) counsel
for the Administrative Agent, (B) counsel for the Joint Lead Arrangers as
a group and (C) counsel for all of the Banks as a group; and provided,
further, that all other costs and expenses for which the Borrower is obligated
under this subsection (a)(iii) shall be limited to the reasonable and
invoiced non-duplicative costs and expenses of the Administrative Agent). For
purposes of this subsection (a)(iii), (1) counsel for the Administrative
Agent shall mean a single outside law firm representing the Administrative
Agent, (2) counsel for the Joint Lead Arrangers shall mean a single
outside law firm representing the Joint Lead Arrangers as a group (which law
firm may or may not be the same law firm representing the Administrative Agent)
and (3) counsel for all of the Banks as a group shall mean a single outside
law firm representing such Banks as a group (which law firm may or may not be
the same law firm representing the Administrative Agent).


 


(b)                                 The
Borrower agrees to indemnify each Agent and each Bank, their respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from
and against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding that may at any time
(including, without limitation, at any time following the payment of the
Obligations) be asserted against any Indemnitee, as a result of, or arising out
of, or in any way related to or by reason of, 


 


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(i) any of the transactions contemplated
by the Loan Documents or the execution, delivery or performance of any Loan
Document, (ii) any violation by the Borrower or the Environmental
Affiliates of any applicable Environmental Law, (iii) any Environmental
Claim arising out of the management, use, control, ownership or operation of
property or assets by the Borrower or any of the Environmental Affiliates,
including, without limitation, all on-site and off-site activities of the
Borrower or any Environmental Affiliate involving Materials of Environmental
Concern, (iv) the breach of any environmental representation or warranty
set forth herein, but excluding those liabilities, losses, damages, costs and
expenses (a) for which such Indemnitee has been compensated pursuant to
the terms of this Agreement or that are excluded under Section 8.3, (b) incurred
solely by reason of the gross negligence or willful misconduct of such
Indemnitee as finally determined by a court of competent jurisdiction, (c) arising
from any violation of Environmental Law relating to a Property, which violation
is caused by the act or omission of such Indemnitee after such Indemnitee takes
possession of such Property or (d) owing by such Indemnitee to any third
party based upon contractual obligations of such Indemnitee owing to such third
party which are not expressly set forth in the Loan Documents. In addition, the
indemnification set forth in this Section 9.3(b) in favor of any
director, officer, agent or employee of any Agent or any Bank shall be solely
in their respective capacities as such director, officer, agent or employee. The
Borrower’s obligations under this Section shall survive the termination of
this Agreement and the payment of the Obligations. Without limitation of the
other provisions of this Section 9.3, the Borrower shall indemnify and
hold each of the Agents and the Banks free and harmless from and against all
loss, costs (including reasonable and documented attorneys’ fees and expenses),
expenses, taxes, and damages (including consequential damages) that the Agents
and the Banks may suffer or incur by reason of the investigation, defense and
settlement of claims and in obtaining any prohibited transaction exemption
under ERISA or the Code necessary in the Administrative Agent’s reasonable
judgment by reason of the inaccuracy of the representations and warranties, or
a breach of the provisions, set forth in Section 4.6(b).


 


Section 9.4. Sharing
of Set-Offs. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of Default, each
Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special, time or
demand, provisional or final) and any other indebtedness at any time held or
owing by such Bank (including, without limitation, by branches, agencies and
Affiliates of such Bank wherever located) to or for the credit or the account
of the Borrower against and on account of the Obligations of the Borrower then
due and payable to such Bank under this Agreement or under any of the other
Loan Documents, including, without limitation, all interests in Obligations
purchased by such Bank.  Each Bank agrees
that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Loan made by it, which is greater than the
proportion received by any other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Loans made by the
other Banks, and such other adjustments shall be made, as may be required so
that all such payments of principal and interest with respect to the Loans made
by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it 


 


72

















 


may have to any deposits not received in connection with the Loans and
to apply the amount subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Loans.  The Borrower agrees, to the fullest extent it
may effectively do so under applicable law, that any holder of a participation
in a Commitment or a Loan, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation. Notwithstanding anything to the contrary contained herein, any
Bank may, by separate agreement with the Borrower, waive its right to set off
contained herein or granted by law and any such written waiver shall be
effective against such Bank under this Section 9.4.


 


Section 9.5. Amendments
and Waivers.  (a)  Any provision
of this Agreement or the Notes or other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the
Administrative Agent in its capacity as the Administrative Agent are affected
thereby, by the Administrative Agent); provided that (A) Administrative
Agent may, with the consent of Borrower only, amend, modify or supplement this
Agreement or any other Loan Document in connection with the addition or
substitution of Collateral in accordance with the terms of this Agreement, in
each case, which amendment, modification or supplement does not adversely
affect the rights of any Bank, (B) no amendment or waiver with respect to
this Agreement, the Notes or any other Loan Document shall, unless signed by
each Bank directly affected thereby, (i) reduce the principal of or rate
of interest on any Loan or any fees hereunder, (ii) postpone, whether
through forbearance or otherwise, the date fixed for any payment of principal
of or interest on any Loan or any fees hereunder or for any reduction or
termination of any Commitment, (iii) reduce the percentage specified in
the definition of “Required Banks” or “Super-Majority Banks” or otherwise
change the aggregate unpaid principal amount of the Loans, or the number of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement or any Collateral
Document, (iv) release any Guarantor under the Guarantees (except as
expressly permitted by the Guarantees or this Agreement) or release any
Collateral under the Collateral Documents (except as expressly permitted by the
Collateral Documents or this Agreement), (v) amend, modify or waive any
provision of Section 2.10, (vi) amend, modify or waive the definition
of “Pro Rata Share” or any other provision that provides for the ratable or pro
rata nature of disbursements by or payments to Banks; provided that only
the consent of the Required Banks shall be necessary for any such amendment,
modification or waiver of the minimum Discount referred to in Section 2.12,
(vii) modify the provisions of this Section 9.5 or (viii) increase,
extend or restate the Commitment of any Bank or subject any Bank to any
additional obligation and (C) no amendment or waiver with respect to this
Agreement, the Notes or any other Loan Document shall, unless signed by the
Super-Majority Banks, (i) amend, modify or waive any provision of Section 5.17,
(ii) amend, modify or waive the definitions of “Borrowing Base Value”, “Collateral”,
“Coverage Ratio”, “Coverage Test” or any component definition of any of the
foregoing if such amendment, modification or waiver is intended to have the
effect of making more credit available or to reduce the collateral coverage
therefor, (iii) amend, modify or waive the definition of “Principal
Collateral Payment Event” or any component definition thereof, (iv) approve
the incurrence of any security interests senior to, or pari passu with, the
Liens securing the Obligations hereunder or (v) amend, modify or waive any
provision of Section 8 of the Collateral Trust Agreement or Section 3.4
of the Collateral Trust Agreement, in each case in any 


 


73

















 


manner adverse to the Banks. 
Notwithstanding anything to the contrary contained herein, no Defaulting
Bank shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that (x) the Commitment of such Defaulting Bank
may not be increased or extended without the consent of such Defaulting Bank
and (y) the interest rate or fees due to such Defaulting Bank shall not be
reduced (it being understood that any Commitments or Loans held or deemed held
by any Defaulting Bank shall be excluded for purposes of making a determination
of Required Banks pursuant to this Section 9.5).


 


(b)                                 Notwithstanding
anything to the contrary contained herein, the Administrative Agent is hereby
authorized by each Bank to enter into any amendment to or modification of the
Collateral Trust Agreement in connection with the issuance of any Second
Priority Exchange Notes or Junior Priority Secured Exchange Notes solely to the
extent necessary to effect such amendments as may be necessary or appropriate,
in the reasonable opinion of the Administrative Agent, in connection with any
such issuance expressly permitted hereunder (including any such amendment
contemplated by Section 6.3(c) or (d) of the Collateral Trust Agreement),
so long as such amendment or modification does not adversely affect the rights
of any Bank.


 


(c)                                  The
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Bank, execute amendments, modifications, waivers or consents on behalf
of such Bank.  Any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given.  No notice to or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.  Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 9.5 shall be
binding upon each Bank at the time outstanding, each future Bank and, if signed
by a Loan Party, on such Loan Party.


 


Section 9.6. Successors
and Assigns.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns,
except that (i) the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks and the Administrative Agent and (ii) a Bank
may not assign or otherwise transfer any of its interest under this Agreement
except as permitted in subsection (b) and (c) of this Section 9.6.


 


(b)                                 Prior
to the occurrence of an Event of Default, any Bank may at any time, grant to a
then existing Bank or any Affiliate thereof, one or more banks, finance companies,
insurance companies or other financial institutions or trusts (a “Participant”)
participating interests in its Commitment or any or all of its Loans. After the
occurrence and during the continuance of an Event of Default, any Bank may at
any time grant to any Person in any amount (also a “Participant”),
participating interests in its Commitment or any or all of its Loans.  Any participation made during the
continuation of an Event of Default shall not be affected by the subsequent
cure of such Event of Default. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and 


 


74

















 


directly with such Bank in connection with
such Bank’s rights and obligations under this Agreement.  Any agreement pursuant to which any Bank may
grant such a participating interest shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5(a)(B) without
the consent of the Participant. The Borrower agrees that each Participant
shall, to the extent provided in its participation agreement, be entitled to
the benefits of Article VIII with respect to its participating interest.


 


(c)                                  Any
Bank may at any time assign to a Qualified Institution (in each case, an “Assignee”)
(i) prior to the occurrence of an Event of Default, in minimum amounts of
not less than $5,000,000 and integral multiples of $1,000,000 thereafter (or
any lesser amount in the case of assignments to an existing Bank or any
Affiliate thereof or in the case of an assignment of a Bank’s entire
Commitment) and (ii) after the occurrence and during the continuance of an
Event of Default, in any amount, all or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and, in either case, such Assignee shall assume such rights and
obligations, pursuant to a Transfer Supplement in substantially the form of Exhibit I
hereto executed by such Assignee and such transferor Bank; provided,
that if no Event of Default shall have occurred and be continuing, such
assignment shall be subject to the Administrative Agent’s and the Borrower’s
consent, which consent shall not be unreasonably withheld or delayed; and
provided further that if an Assignee is an Affiliate of such transferor Bank or
was a Bank or Affiliate thereof immediately prior to such assignment, no such
consent shall be required from the Borrower or the Administrative Agent.  Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and no further consent or action by any party shall
be required and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if requested or required,
a new Note is issued to the Assignee upon the return to the Borrower of the old
Note, if any, marked “cancelled”.  In
connection with any such assignment (other than an assignment by a Bank to an
affiliate), the transferor Bank shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500.  If the Assignee is not organized under the
laws of the United States of America or a state thereof, it shall deliver to the
Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in
accordance with Section 8.4. Any assignment made during the continuation
of an Event of Default shall not be invalidated by any subsequent cure of such
Event of Default.


 


(d)                                 Any
Bank may at any time assign all or any portion of its rights under this
Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.


 


75
















 


(e)           No Assignee, Participant or other
transferee of any Bank’s rights shall be entitled to receive any greater
payment under Section 8.3or Section 8.4 than such Bank would have
been entitled to receive with respect to the rights transferred, unless such transfer
is made (i) with the Borrower’s prior written consent or (ii) by
reason of the provisions of Section 8.2, Section 8.3or Section 8.4
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.


 


(f)            No Assignee of any rights and
obligations under this Agreement shall be permitted to further assign less than
all of such rights and obligations. No Participant in any rights and obligations
under this Agreement shall be permitted to sell subparticipations of such
rights and obligations.


 


(g)           Anything in this Agreement to the
contrary notwithstanding, so long as no Event of Default shall have occurred
and be continuing, no Bank shall be permitted to enter into an assignment of,
or sell a participation interest in, its rights and obligations hereunder which
would result in such Bank holding a Commitment without participants of less
than $5,000,000 unless as a result of a cancellation or reduction of the
aggregate Commitments; provided, however, that no Bank shall be prohibited from
assigning its entire Commitment so long as such assignment is otherwise
permitted under this Section 9.6.


 


(h)           The Administrative Agent shall
maintain on behalf of the Borrower a register of the names, addresses and
contact information of the Banks and each of their assignees, and the
Commitments of, and principal amounts of the Loans and interest owing to, each
Bank pursuant to the terms hereof from time to time.


 


Section 9.7. Governing Law; Submission to Jurisdiction;
Judgment Currency. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF
LAW).


 


(b)           Any legal action or proceeding with
respect to this Agreement or any other Loan Document and any action for
enforcement of any judgment in respect thereof may be brought in the courts of
the State of New York or of the United States of America for the Southern
District of New York, in each case, which are located in New York County, and,
by execution and delivery of this Agreement, the Borrower hereby accepts for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from
any thereof.  The Borrower irrevocably consents,
for itself, to the service of process out of any of the aforementioned courts
in any such action or proceeding by the hand delivery, or mailing of copies
thereof by registered or certified mail, postage prepaid, to the Borrower at
its address set forth below its signature hereto. The Borrower hereby, for
itself, irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Loan Document brought in the
courts referred to above and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action 


 


76

















 


or proceeding brought in any such court has
been brought in an inconvenient forum. 
Nothing herein shall affect the right of the Administrative Agent to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other
jurisdiction.


 


(c)           If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so under applicable law, that the rate of exchange
used shall be the spot rate at which in accordance with normal banking
procedures the first currency could be purchased in New York City with such
other currency by the person obtaining such judgment on the Business Day
preceding that on which final judgment is given.


 


(d)           The parties agree, to the fullest
extent that they may effectively do so under applicable law, that the
obligations of the Borrower to make payments in any currency of the principal
of and interest on the Loans of the Borrower and any other amounts due from the
Borrower hereunder to the Administrative Agent as provided herein (i) shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with Section 9.7(c)), in
any currency other than the relevant currency, except to the extent that such
tender or recovery shall result in the actual receipt by the Administrative
Agent at its relevant office on behalf of the Banks of the full amount of the
relevant currency expressed to be payable in respect of the principal of and
interest on the Loans and all other amounts due hereunder (it being assumed for
purposes of this clause (i) that the Administrative Agent will convert any
amount tendered or recovered into the relevant currency on the date of such
tender or recovery), (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the relevant
currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the relevant currency so expressed to be payable and (iii) shall
not be affected by an unrelated judgment being obtained for any other sum due
under this Agreement.


 


Section 9.8. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.  This Agreement shall become
effective upon receipt by the Administrative Agent and the Borrower of
counterparts hereof signed by each of the parties hereto (or, in the case of
any party as to which an executed counterpart shall not have been received,
receipt by the Administrative Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party).


 


Section 9.9. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.


 


77

















 


Section 9.10. Survival. All indemnities set forth herein
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.


 


Section 9.11. Domicile of Loans. Subject to the provisions
of Article VIII, each Bank may transfer and carry its Loans at, to or for
the account of any domestic or foreign branch office, subsidiary or affiliate
of such Bank.


 


Section 9.12. Limitation of Liability. No claim may be made
by the Borrower or any other Person acting by or through the Borrower against
the Administrative Agent, any Syndication Agent or any Bank or the affiliates,
directors, officers, employees, attorneys or agent of any of them for any
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement or by the other Loan Documents, or any act, omission or event
occurring in connection therewith; and the Borrower hereby waives, releases and
agrees not to sue upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.


 


Section 9.13. Recourse Obligation. This Agreement and the
Obligations hereunder are fully recourse to the Borrower and each
Guarantor.  Notwithstanding the
foregoing, no recourse under or upon any obligation, covenant, or agreement
contained in this Agreement shall be had against any officer, director,
shareholder or employee of the Borrower or any Guarantor except in the event of
fraud or misappropriation of funds on the part of such officer, director,
shareholder or employee.


 


Section 9.14. Confidentiality. Each of the Administrative
Agent, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners
and the Banks understands that some of the information furnished to it pursuant
to this Agreement and the other Loan Documents may be received by it prior to the
time that such information shall have been made public, and each of the
Administrative Agent, the Syndication Agents, the Joint Lead Arrangers, the
Joint Bookrunners and the Banks hereby agrees that it will keep all Information
(as defined below) received by it confidential except that the Administrative
Agent, Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners and
each Bank shall be permitted to disclose Information (i) only to such of
its officers, directors, employees, agents, auditors and buyers as need to know
such information in connection with this Agreement or any other Loan Document
and who will be advised of the confidential nature of such Information; (ii) to
any other party to this Agreement; (iii) to a proposed Assignee or Participant
in accordance with Section 9.6 hereof or to a counterparty or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations hereunder, provided such Person agrees in
writing to keep such Information confidential on terms substantially similar to
this Section 9.14; (iv) to the extent required by applicable law and
regulations or by any subpoena or other legal process; (v) to the extent
requested by any bank regulatory authority or other regulatory authority or
self-regulatory organization; (vi) to the extent such information becomes
publicly available other than as a result of a breach of this Agreement; (vii) to
the extent the Borrower shall have consented to such disclosure or (viii) in
connection with any legal or other enforcement proceeding in connection with
any Loan Document or any of the transaction contemplated thereby. For the
purposes of this Section, “Information” means all information 


 


78

















 


received from the Borrower or its respective officers, directors,
employees, agents, auditors, lawyers and Affiliates relating to the Borrower or
any of its Subsidiaries or Affiliates (including Investment Affiliates) or any
of their respective businesses other than information that is generally
available to the public.  In the event of
any required disclosure of Information, any Person required to maintain the
confidentiality of such Information as provided in this Section 9.14
agrees to use reasonable efforts to inform the Borrower as promptly as
practicable of the circumstances and the Information required to be disclosed
to the extent not prohibited by applicable law.


 


Section 9.15. USA Patriot Act. Each Bank hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that
identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Bank to identify the Borrower in accordance with the
Patriot Act.


 


Section 9.16. Acknowledgements.  The Borrower hereby acknowledges that:


 


(a)           it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;


 


(b)           neither the Administrative Agent nor any Bank has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Banks, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and


 


(c)            no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Banks or among the Borrower and the Banks.


 


Section 9.17. Releases
of Guarantees and Liens


 


(a)           Notwithstanding anything to the contrary contained herein
or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Bank (without requirement of notice to or consent of any
Bank except as expressly required by Section 9.5) to take any action
requested by the Borrower or any Guarantor having the effect of releasing any
Collateral or any Guarantor from its guarantee obligations (i) to the
extent necessary to permit consummation of any transaction permitted by any
Loan Document or that has been consented to in accordance with Section 9.5
or (ii) under the circumstances described in paragraph (b) below.


 


(b)           At
such time as the Loans and the other Obligations under the Loan Documents shall
have been paid in full and the Commitments have been terminated, the Collateral
shall be released from the Liens created by the Collateral Documents, and the
Collateral Documents and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Loan Party under
the Collateral Documents shall terminate, all without delivery of any
instrument or performance of any act by any Person.


 


79

















 


[remainder of page intentionally left
blank; signature pages follow]


 


80

















 


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


 


 


	
   

  	
  iSTAR FINANCIAL INC., A
  MARYLAND CORPORATION, as the Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geoffrey M. Dugan

  
	
   

  	
  Name:

  	
  Geoffrey
  M. Dugan

  
	
   

  	
  Title:

  	
  Secretary

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as the
  Administrative Agent and a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Charles Hoagland

  
	
   

  	
  Name:

  	
  Charles
  Hoagland

  
	
   

  	
  Title:

  	
  Vice-President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  J.P. MORGAN SECURITIES INC., as Joint Lead
  Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Daniel Rouse

  
	
   

  	
  Name:

  	
  R.
  Daniel Rouse

  
	
   

  	
  Title:

  	
  Executive
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as
  Syndication Agent and a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael W. Edwards

  
	
   

  	
  Name:

  	
  Michael
  W. Edwards

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  BANC OF AMERICA SECURITIES LLC, as Joint Lead
  Arranger and Joint Bookrunner 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas T. Sheally, Jr

  
	
   

  	
  Name:

  	
  Thomas
  T. Sheally, Jr

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  CITICORP NORTH AMERICA, INC., as
  Syndication Agent and a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Bouton

  
	
   

  	
  Name:

  	
  David
  Bouton

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as Joint Lead
  Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Bouton

  
	
   

  	
  Name:

  	
  David
  Bouton

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION, as
  a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evander S. Jones, Jr.

  
	
   

  	
  Name:

  	
  Evander
  S. Jones, Jr.

  
	
   

  	
  Title:

  	
  Director

  



 


First Priority Credit Agreement


 
















 


	
   

  	
  DEUTSCHE BANK AG, NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Rolison

  
	
   

  	
  Name:

  	
  James Rolison

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Chris Jones

  
	
   

  	
  Name:

  	
  R. Chris Jones

  
	
   

  	
  Title:

  	
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC., as a
  Bank 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen B. King

  
	
   

  	
  Name:

  	
  Stephen B. King

  
	
   

  	
  Title:

  	
  Vice President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  BARCLAYS BANK PLC, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Manski

  
	
   

  	
  Name:

  	
  Mark Manski

  
	
   

  	
  Title:

  	
  Managing Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC, as a Bank 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Fabiano

  
	
   

  	
  Name:

  	
  Michael Fabiano

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  BANK OF MONTREAL, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sue R. Blazis

  
	
   

  	
  Name:

  	
  Sue R. Blazis

  
	
   

  	
  Title:

  	
  Vice President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  NATIONAL AUSTRALIA BANK LTD., as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Pryce

  
	
   

  	
  Name:

  	
  Michael Pryce

  
	
   

  	
  Title:

  	
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  ROYAL BANK OF CANADA, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dan LePage

  
	
   

  	
  Name:

  	
  Dan LePage

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George Sherman

  
	
   

  	
  Name:

  	
  George Sherman

  
	
   

  	
  Title:

  	
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  FORTIS BANK SA/NV, NEW YORK BRANCH, as a
  Bank 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barry Chung

  
	
   

  	
  Name:

  	
  Barry Chung

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jack Au

  
	
   

  	
  Name:

  	
  Jack Au

  
	
   

  	
  Title:

  	
  Director

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas L. Nolan

  
	
   

  	
  Name:

  	
  Thomas L. Nolan

  
	
   

  	
  Title:

  	
  Vice President

  



 


First Priority Credit Agreement


 
















 


	
   

  	
  EMIGRANT
  REALTY FINANCE., LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Broido

  
	
   

  	
  Name:
  

  	
  Michael
  Broido

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christian Ruehmer

  
	
   

  	
  Name:
  

  	
  Christian
  Ruehmer

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sharon Wang

  
	
   

  	
  Name:
  

  	
  Sharon
  Wang

  
	
   

  	
  Title:
  

  	
  Associate
  Director

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  MEGA
  INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tsang – Pei Hsu

  
	
   

  	
  Name:
  

  	
  Tsang
  – Pei Hsu

  
	
   

  	
  Title:
  

  	
  VP
  & DGM

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  BANK OF CHINA, NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Xiaojing Li

  
	
   

  	
  Name:
  

  	
  Xiaojing
  Li

  
	
   

  	
  Title:
  

  	
  General
  Manager

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  PEOPLE’S UNITED BANK, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice E. Fry

  
	
   

  	
  Name:
  

  	
  Maurice
  Fry

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  THE BANK OF TOKYO - MITSUBISHI UFJ, LTD, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Noda

  
	
   

  	
  Name:
  

  	
  David
  Noda

  
	
   

  	
  Title:
  

  	
  VP
  & Manager

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  E.
  SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Benjamin Lin

  
	
   

  	
  Name:
  

  	
  Benjamin
  Lin

  
	
   

  	
  Title:
  

  	
  EVP
  & GM

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  TAIPEI
  FUBON COMMERCIAL BANK, NEW YORK AGENCY, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Tan

  
	
   

  	
  Name:
  

  	
  Michael
  Tan

  
	
   

  	
  Title:
  

  	
  VP
  & General Manager

  
				



 


First Priority Credit Agreement


 

















 


	
   

  	
  THE
  BANK OF EAST ASIA, LIMITED NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kenneth A. Pettis

  
	
   

  	
  Name:

  	
  Kenneth
  A. Pettis

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kitty Sin

  
	
   

  	
  Name:

  	
  Kitty
  Sin

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


First Priority Credit Agreement


 

















 


	
   

  	
  THE CHIBA BANK, LTD., NEW YORK BRANCH, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yukihito Inamura

  
	
   

  	
  Name:
  

  	
  Yukihito
  Inamura

  
	
   

  	
  Title:
  

  	
  General
  Manager

  
				



 


First Priority Credit Agreement