Exhibit 10.3


 




 





 


$950,000,000


 


2012 SECOND 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

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 2.1. Term Commitments

  	
   

  	
  30

  
	
  Section 2.2. Revolving Credit Commitments

  	
   

  	
  32

  
	
  Section 2.3. Notice of Borrowing

  	
   

  	
  32

  
	
  Section 2.4. Swingline Loan Subfacility

  	
   

  	
  35

  
	
  Section 2.5. Notice to Banks; Funding of Loans;
  Replacement of Defaulting Bank

  	
   

  	
  37

  
	
  Section 2.6. Notes

  	
   

  	
  39

  
	
  Section 2.7. Method of Electing Interest Rates

  	
   

  	
  40

  
	
  Section 2.8. Interest Rates

  	
   

  	
  41

  
	
  Section 2.9. Fees

  	
   

  	
  42

  
	
  Section 2.10. Maturity Date

  	
   

  	
  43

  
	
  Section 2.11. Optional Prepayments

  	
   

  	
  43

  
	
  Section 2.12. Mandatory Prepayments; Cure

  	
   

  	
  44

  
	
  Section 2.13. Non-Pro Rata Prepayments

  	
   

  	
  46

  
	
  Section 2.14. General Provisions as to Payments

  	
   

  	
  46

  
	
  Section 2.15. Priority of Payments

  	
   

  	
  47

  
	
  Section 2.16. Funding Losses

  	
   

  	
  48

  
	
  Section 2.17. Computation of Interest and Fees

  	
   

  	
  49

  
	
  Section 2.18. Use of Proceeds

  	
   

  	
  49

  
	
  Section 2.19. Letters of Credit

  	
   

  	
  49

  
	
  Section 2.20. Letter of Credit Usage Absolute

  	
   

  	
  52

  
	
  Section 2.21. Letters of Credit Maturing after
  the Maturity Date

  	
   

  	
  53

  
	
  Section 2.22. Payments

  	
   

  	
  53

  
	
  Section 2.23. Collateral

  	
   

  	
  54

  
	
  Section 2.24. Mortgages

  	
   

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONDITIONS

  	
   

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 3.1. Closing

  	
   

  	
  56

  
	
  Section 3.2. Borrowings

  	
   

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 4.1. Existence and Power

  	
   

  	
  60

  
	
  Section 4.2. Power and Authority

  	
   

  	
  61

  
	
  Section 4.3. No Violation

  	
   

  	
  61

  
	
  Section 4.4. Financial Information

  	
   

  	
  61

  
	
  Section 4.5. Litigation

  	
   

  	
  62

  



 


i

















 


	
  Section 4.6. Compliance with ERISA

  	
   

  	
  62

  
	
  Section 4.7. Environmental

  	
   

  	
  62

  
	
  Section 4.8. Taxes

  	
   

  	
  63

  
	
  Section 4.9. Full Disclosure

  	
   

  	
  63

  
	
  Section 4.10. Solvency

  	
   

  	
  64

  
	
  Section 4.11. Use of Proceeds

  	
   

  	
  64

  
	
  Section 4.12. Governmental Approvals

  	
   

  	
  64

  
	
  Section 4.13. Investment Company Act

  	
   

  	
  64

  
	
  Section 4.14. Principal Offices

  	
   

  	
  64

  
	
  Section 4.15. REIT Status

  	
   

  	
  64

  
	
  Section 4.16. Patents, Trademarks, etc.

  	
   

  	
  64

  
	
  Section 4.17. Judgments

  	
   

  	
  64

  
	
  Section 4.18. No Default

  	
   

  	
  64

  
	
  Section 4.19. Licenses, etc.

  	
   

  	
  65

  
	
  Section 4.20. Compliance with Law

  	
   

  	
  65

  
	
  Section 4.21. No Burdensome Restrictions

  	
   

  	
  65

  
	
  Section 4.22. Brokers’ Fees

  	
   

  	
  65

  
	
  Section 4.23. Labor Matters

  	
   

  	
  65

  
	
  Section 4.24. Insurance

  	
   

  	
  65

  
	
  Section 4.25. Organizational Documents

  	
   

  	
  66

  
	
  Section 4.26. Unencumbered Assets and
  Indebtedness

  	
   

  	
  66

  
	
  Section 4.27. Ownership of Property; Liens

  	
   

  	
  66

  
	
  Section 4.28. Subsidiaries

  	
   

  	
  66

  
	
  Section 4.29. Security Documents

  	
   

  	
  66

  
	
  Section 4.30. Mortgages

  	
   

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS

  	
   

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 5.1. Information

  	
   

  	
  67

  
	
  Section 5.2. Payment of Obligations

  	
   

  	
  70

  
	
  Section 5.3. Maintenance of Property;
  Insurance; Leases

  	
   

  	
  70

  
	
  Section 5.4. Maintenance of Existence

  	
   

  	
  71

  
	
  Section 5.5. Compliance with Laws

  	
   

  	
  71

  
	
  Section 5.6. Inspection of Property, Books and
  Records

  	
   

  	
  71

  
	
  Section 5.7. Existence

  	
   

  	
  71

  
	
  Section 5.8. Deposit Accounts

  	
   

  	
  71

  
	
  Section 5.9. Independent Director

  	
   

  	
  72

  
	
  Section 5.10. Financial Covenants and
  Restricted Payments

  	
   

  	
  72

  
	
  Section 5.11. Restriction on Fundamental
  Changes

  	
   

  	
  73

  
	
  Section 5.12. Changes in Business

  	
   

  	
  74

  
	
  Section 5.13. Borrower Status

  	
   

  	
  74

  
	
  Section 5.14. Other Indebtedness

  	
   

  	
  74

  
	
  Section 5.15. Liens

  	
   

  	
  75

  
	
  Section 5.16. Prepayments of Secured Exchange
  Notes, Other Notes, 2011 Second Priority Credit Agreement and Existing Credit
  Agreements; Amendments

  	
   

  	
  76

  
	
  Section 5.17. Coverage Test

  	
   

  	
  77

  



 


ii

















 


	
  Section 5.18. Forward Equity Contracts

  	
   

  	
  77

  
	
  Section 5.19. Restrictive Agreements

  	
   

  	
  77

  
	
  Section 5.20. Limitation on Activities of the
  Collateral SPVs

  	
   

  	
  77

  
	
  Section 5.21. Transactions with Affiliates

  	
   

  	
  77

  
	
  Section 5.22. Post-Closing Covenants

  	
   

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULTS

  	
   

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 6.1. Events of Default

  	
   

  	
  78

  
	
  Section 6.2. Rights and Remedies

  	
   

  	
  81

  
	
  Section 6.3. Notice of Default

  	
   

  	
  82

  
	
  Section 6.4. Actions in Respect of Letters of
  Credit

  	
   

  	
  82

  
	
  Section 6.5. Distribution of Proceeds after
  Default

  	
   

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII THE AGENTS; CERTAIN MATTERS RELATING TO
  THE BANKS

  	
   

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 7.1. Appointment and Authorization

  	
   

  	
  84

  
	
  Section 7.2. Agency and Affiliates

  	
   

  	
  85

  
	
  Section 7.3. Action by Agents

  	
   

  	
  85

  
	
  Section 7.4. Consultation with Experts

  	
   

  	
  85

  
	
  Section 7.5. Liability of Agents

  	
   

  	
  85

  
	
  Section 7.6. Indemnification

  	
   

  	
  85

  
	
  Section 7.7. Credit Decision

  	
   

  	
  86

  
	
  Section 7.8. Successor Agent

  	
   

  	
  86

  
	
  Section 7.9. Consents and Approvals

  	
   

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII CHANGE IN CIRCUMSTANCES

  	
   

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 8.1. Basis for Determining Interest
  Rate Inadequate or Unfair

  	
   

  	
  87

  
	
  Section 8.2. Illegality

  	
   

  	
  87

  
	
  Section 8.3. Increased Cost and Reduced Return

  	
   

  	
  88

  
	
  Section 8.4. Taxes

  	
   

  	
  89

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

  	
   

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
   

  	
  93

  
	
   

  	
   

  	
   

  
	
  Section 9.1. Notices

  	
   

  	
  93

  
	
  Section 9.2. No Waivers

  	
   

  	
  93

  
	
  Section 9.3. Expenses; Indemnification

  	
   

  	
  94

  
	
  Section 9.4. Sharing of Set-Offs

  	
   

  	
  95

  
	
  Section 9.5. Amendments and Waivers

  	
   

  	
  96

  
	
  Section 9.6. Successors and Assigns

  	
   

  	
  97

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

  	
   

  	
  99

  
	
  Section 9.8. Counterparts; Integration;
  Effectiveness

  	
   

  	
  100

  
	
  Section 9.9. WAIVER OF JURY TRIAL

  	
   

  	
  101

  
	
  Section 9.10. Survival

  	
   

  	
  101

  
	
  Section 9.11. Domicile of Loans

  	
   

  	
  101

  
	
  Section 9.12. Limitation of Liability

  	
   

  	
  101

  



 


iii

















 


	
  Section 9.13. Recourse Obligation

  	
   

  	
  101

  
	
  Section 9.14. Confidentiality

  	
   

  	
  101

  
	
  Section 9.15. USA Patriot Act

  	
   

  	
  102

  
	
  Section 9.16. Acknowledgments

  	
   

  	
  102

  
	
  Section 9.17. Releases of Guarantees and Liens

  	
   

  	
  102

  
	
  Section 9.18. Delivery of Promissory Notes

  	
   

  	
  103

  



 


	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1.1A

  	
   

  	
  Commitments

  
	
  SCHEDULE 1.1B

  	
   

  	
  Listed Eligible Assets

  
	
  SCHEDULE 1.1C

  	
   

  	
  Permitted Liens

  
	
  SCHEDULE 1.1D

  	
   

  	
  Pledged Collateral List

  
	
  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-1

  	
   

  	
  Form of Term Loan Note

  
	
  EXHIBIT G-2

  	
   

  	
  Form of Multicurrency Revolving/Term Loan Note

  
	
  EXHIBIT G-3

  	
   

  	
  Form of Revolving Credit Loan Note

  
	
  EXHIBIT G-4

  	
   

  	
  Form of Swingline Loan Note

  
	
  EXHIBIT H

  	
   

  	
  Notice Addresses

  
	
  EXHIBIT I

  	
   

  	
  Transfer Supplement

  
	
  EXHIBIT J

  	
   

  	
  Form of Mortgage

  



 


iv

















 


2012 SECOND PRIORITY CREDIT
AGREEMENT


 


2012 SECOND 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 term loan credit facility and a revolving 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:


 


“2011 Second Priority Credit Agreement”
means the $1,695,000,000 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.


 


“Acceleration Event” has the meaning
set forth in the Collateral Trust Agreement.


 


“Adjusted Funded Amount” means an
amount equal to (a) Dollar Equivalent Amount of the aggregate amount of
all Multicurrency Revolving/Term Loans as of the Closing Date minus (b) the
Dollar Equivalent Amount of any permanent prepayments or permanent repayments
of the Multicurrency Revolving/Term Loans pursuant to Section 2.11, Section 2.12
or Section 2.13 (in the case of Section 2.13 including the Discount)
or any other permanent prepayments or permanent repayments of the Multicurrency
Revolving/Term Loans made pursuant to the terms of this Agreement.


 


“Administrative Agent” means (i) with
respect to Notices of Borrowing and the administration of Loans denominated in
an Alternate Currency and interest and fee payments with respect to Loans
denominated in an Alternate Currency, J.P. Morgan Europe Limited; and (ii) for
all other purposes under this Agreement, JPMorgan Chase Bank, N.A., in each
case in its 


 

















 


respective capacity as Administrative Agent
hereunder, and its respective 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 2012 Second
Priority Credit Agreement as the same may from time to time hereafter be
modified, supplemented or amended.


 


“Alternate Currency” means the lawful
currency of any of (i) the United Kingdom (British Pounds Sterling) or (ii) the
European Economic Union (Euros) or (iii) Canada (Canadian Dollars).


 


“Alternate Currency Loan” means a Loan
denominated in an Alternate Currency.


 


“Alternate Currency Revolving Credit Loan”
means a Revolving Credit Loan denominated in an Alternate Currency.


 


“Applicable Fee Percentage” means the
respective percentages per annum determined, at any time, based on the range
into which Borrower’s Credit Rating then falls, in accordance with the table
set forth below.  Any change in Borrower’s
Credit Rating causing it to move to a different range on the table shall effect
an immediate change in the Applicable Fee Percentage.  Borrower shall have not less than two (2) Credit
Ratings at all times.  In the event that
Borrower has two (2) or more Credit Ratings that are not all equivalent,
the Applicable Fee Percentage shall be determined by the highest Credit Rating;
provided that such highest Credit Rating shall be from S&P or Moody’s;
provided, further, that if such highest Credit Rating is not from S&P or
Moody’s, then the Applicable Fee Percentage shall be determined by the highest
Credit Rating from either S&P or Moody’s.


 


2

















 




	
  Range of Borrower’s Credit Rating

  Applicable (S&P/Moody’s Ratings)

  	
   

  	
  Fee Percentage

  (% per annum)

  
	
  >BBB+/Baa1

  	
   

  	
  0.09

  
	
  BBB+/Baa1

  	
   

  	
  0.10

  
	
  BBB/Baa2

  	
   

  	
  0.125

  
	
  BBB-/Baa3

  	
   

  	
  0.15

  
	
  <BB+/Ba1

  	
   

  	
  0.20

  






 


“Applicable Lending Office” means with
respect to any Bank, (i) in the case of its Base Rate Loans and Swingline
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

  	
   

  	
  0.25

  	
   

  	
  1.25

  
	
  =BBB/Baa2

  	
   

  	
  0.50

  	
   

  	
  1.50

  



 


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


 


“Available Secured Bank Exposure”
means, on any date of determination, the sum of (i) the aggregate undrawn
commitments under the First Priority Credit Agreement on such date, (ii) the
aggregate undrawn commitments under the 2011 Second Priority Credit Agreement
on such date, and (iii) the aggregate undrawn 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.


 


3

















 


“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 or the applicable Alternate
Currency with maturities comparable to the applicable Interest Period which (a) in
the case of Dollars or any Alternate Currency other than Euros, appears on
Reuters Page LIBOR1 as of 11:00 a.m., London time, on the Quotation
Date, or (b) in the case of Euros, appears on the page of the Reuters
Screen which displays an average rate of the Banking Federation of the European
Union for the Euro as of 11.00 a.m., Brussels time, on the Quotation Date;
provided, however, if such rate does not appear on Reuters Page LIBOR1
or the Reuters Screen which displays an average rate of the Banking Federation
of the European Union for the Euro, as applicable, or if Reuters Page LIBOR1
or the Reuters Screen which displays an average rate of the Banking Federation
of the European Union for the Euro, as applicable, 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 or the applicable
Alternate Currency, as the case may be, 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 (or in the case of Euros, the European interbank market) to
the London office of the Administrative Agent by leading banks in the London
interbank market (or in the case of Euros, the European interbank market), at
11:00 a.m., London time (or in the case of Euros, Brussels 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 comprised of Base Rate Loans.


 


“Base Rate Loan” means a Loan in
Dollars made or 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” means a Revolving Credit
Borrowing, a Swingline Borrowing or a Term Loan Borrowing, as the context may
require.


 


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


 


4

















 


“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 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.


 


“British Pounds Sterling Multicurrency
Revolving/Term Loan Commitment” means with respect to each Bank, the
obligation of such Bank to make Multicurrency Revolving/Term Loans in British
Pounds Sterling or Dollars to the Borrower pursuant to Section 2.1 in the
principal amount set forth on Schedule 1.1A next to the name of such
Bank as such Bank’s “British Pounds Sterling Multicurrency Revolving/Term Loan
Commitment”).  The aggregate amount of
the Banks’ British Pounds Sterling Multicurrency Revolving/Term Loan
Commitments is £86,000,000.


 


5
















 


“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.


 


“Canadian Dollar Multicurrency
Revolving/Term Loan Commitment” means with respect to each Bank, the
obligation of such Bank to make Multicurrency Revolving/Term Loans in Canadian
Dollars or Dollars to the Borrower pursuant to Section 2.1 in the
principal amount set forth on Schedule 1.1A next to the name of such
Bank as such Bank’s “Canadian Dollar Multicurrency Revolving/Term Loan
Commitment”.  The aggregate amount of the
Banks’ Canadian Dollar Multicurrency Revolving/Term Loan Commitments is
CAD56,000,000.


 


“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, 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.


 


6

















 


“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.


 


“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, such Bank’s Revolving Credit Commitment, such
Bank’s Multicurrency Revolving/Term Loan Commitments (taken singly or together,
as the context may require) and/or such Bank’s Dollar Term Loan Commitment, as
the context may require.


 


7

















 


“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 2.23(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 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


 


8

















 


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.


 


“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 2.8(c).


 


“Defaulting Bank” means any Bank, as
reasonably determined by the Administrative Agent, that has (a) failed to
fund any portion of its Loans under this Agreement


 


9

















 


or loans under either the 2011 Second
Priority Credit Agreement or the First Priority Credit Agreement 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 the 2011 Second Priority Credit
Agreement or the First Priority 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 the 2011 Second
Priority Credit Agreement or the First Priority Credit Agreement, (c) failed,
within three Business Days after written request by the Administrative Agent,
or as applicable, the administrative agent under either the 2011 Second
Priority Credit Agreement or the First Priority Credit Agreement, to confirm
that it will comply with the terms of this Agreement or either the 2011 Second
Priority Credit Agreement or the First Priority Credit Agreement relating to
its obligations to fund prospective Loans or loans under either the 2011 Second
Priority Credit Agreement or the First Priority 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.


 


“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.


 


“Dollar Equivalent Amount” means (i) with
respect to any amount of Alternate Currency on any day, the equivalent amount
in Dollars of such amount of Alternate Currency as determined by the Administrative
Agent using the applicable Exchange Rate on such day and (ii) with respect
to any amount of Dollars, such amount.


 


“Dollar Multicurrency Revolving/Term Loan
Commitment” means with respect to each Bank, the obligation of such Bank to
make Multicurrency Revolving/Term Loans in Dollars to the Borrower pursuant to Section 2.1
in the principal amount set forth on Schedule 1.1A next to the name of
such Bank as such Bank’s “Dollar Multicurrency Revolving/Term Loan Commitment”.  The aggregate amount of the Banks’ Dollar
Multicurrency Revolving/Term Loan Commitments is $45,000,000.


 


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


 


“Dollar Term Loan” means a term loan
made by a Bank in Dollars, pursuant to Section 2.1(b); provided that, if
any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term “Dollar Term Loan”
(or, when “Term Loan” is used, “Term Loan”) shall refer to the combined
principal amount resulting


 


10

















 


from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.


 


“Dollar Term Loan Commitment” means
with respect to each Bank, the obligation of such Bank to make a Term Loan in
Dollars to the Borrower on the Closing Date in the principal amount set forth
on Schedule 1.1A next to the name of such Bank as such Bank’s “Dollar
Term Loan Commitment”.  The initial
aggregate amount of the Banks’ Dollar Term Loan Commitments is $295,000,000.


 


“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


 


11

















 


possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material
Adverse Effect on the Borrower.


 


“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” means a
Borrowing comprised of Euro-Currency Loans.


 


“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 (i) London, or (ii) if such reference
relates to the date on which any amount is to be paid or made available in an
Alternate Currency, the principal financial center in the country of such
Alternate Currency, except that with respect to Euros, the same shall mean a
TARGET Day.


 


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


 


“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


 


12

















 


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).


 


“Euro Multicurrency Revolving/Term Loan
Commitment” means with respect to each Bank, the obligation of such Bank to
make Multicurrency Revolving/Term Loans in Euros or Dollars to the Borrower
pursuant to Section 2.1 in the principal amount set forth on Schedule
1.1A next to the name of such Bank as such Bank’s “Euro Multicurrency
Revolving/Term Loan Commitment”.  The
aggregate amount of the Banks’ Euro Multicurrency Revolving/Term Loan
Commitments is €68,000,000.


 


“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.


 


“Exchange Rate” means, (i) the
rate appearing on the relevant display page (as determined by the
Administrative Agent) on the Reuters Monitor Money Rates Service for the sale
of the applicable Alternate Currency for Dollars in the London foreign exchange
market at approximately 11:00a.m. (London time) for delivery two (2) Euro-Currency
Business Days later or if not available (ii) the spot selling rate at
which the Administrative Agent offers to sell such Alternate Currency for Dollars
in the London foreign exchange  market at
approximately 11:00a.m. (London time) for delivery two Euro-Currency Business
Days later; provided, however, that if, at the time of any such determination,
no such spot rate can reasonably be quoted, the Administrative Agent may use
any reasonable method (including obtaining quotes from two (2) or more
market makers for the applicable Alternate Currency) as it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.


 


“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).


 


13
















 


“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 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.


 


“First Priority Credit Agreement”
means the $1,000,000,000 First 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.


 


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


 


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


 


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


 


14

















 


“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.


 


“Fronting Bank” means JPMorgan Chase
Bank, N.A., and each other Bank that shall consent thereto as may be designated
by the Borrower 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 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, (i) a
group of Multicurrency Revolving/Term Loans or Dollar Term Loans consisting of (x) in
the case of any such Term Loans in Dollars, all Term Loans which are Base Rate
Loans at such time, or (y) all such Term Loans which are Euro-Currency
Loans having the same Interest Period at such time or (ii) a


 


15

















 


group of Revolving Credit Loans consisting of
(x) in the case of Revolving Credit Loans in Dollars, all Revolving Credit
Loans which are Base Rate Loans at such time, or (y) all Revolving Credit
Loans which are Euro-Currency Loans having the same Interest Period at such
time; provided that, in each case, 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 2012
Second Priority 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 the 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 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).


 


16

















 


“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.


 


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


 


“Letter(s) of Credit” means any
letter of credit issued hereunder.


 


17

















 


“Letter of Credit Collateral” has the
meaning provided in Section 6.4.


 


“Letter of Credit Collateral Account”
has the meaning provided in Section 6.4.


 


“Letter of Credit Documents” has the
meaning provided in Section 2.20.


 


“Letter of Credit Usage” means at any
time the sum of the Dollar Equivalent Amount of (i) the aggregate maximum
amount available to be drawn under the Letters of Credit then outstanding,
assuming compliance with all requirements for drawing referred to therein, and (ii) the
aggregate amount of the Borrower’s unpaid obligations under this Agreement in
respect of the Letters of Credit.


 


“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 Term Loan, a Revolving
Credit Loan or a Swingline Loan, and “Loans” means Term Loans, Revolving
Credit Loans or Swingline 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, any Letter of Credit, any Letter of Credit
Document and each Collateral Document.


 


“Loan Parties” means the Borrower and
each Guarantor.


 


“Mandatory Borrowing” has the meaning
set forth in Section 2.4(b)(iii).


 


“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


 


18

















 


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 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), 5.1(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), Section 5.8,
Section 5.10, Section 5.14, Section 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 2.24.


 


“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 2.24.


 


“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


 


19

















 


Party and do not decrease the rights of any
Loan Party or otherwise modify the substantive and remedial provisions of the
Mortgages).


 


“Multicurrency Revolving Loan Period”
has the meaning set forth in Section 2.1(d).


 


“Multicurrency Revolving/Term Loan”
means a term loan made by a Bank in British Pounds Sterling, Canadian Dollars,
Euros or Dollars, as applicable, pursuant to Section 2.1(a) or a
revolving loan made by a Bank in British Pounds Sterling, Canadian Dollars,
Euros or Dollars, as applicable, pursuant to Section 2.1(d); provided
that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term “Multicurrency
Revolving/Term Loan” shall refer to the combined principal amount resulting
from such combination or to each of the separate principal amounts resulting
from such subdivision, as the case may be.


 


“Multicurrency Revolving/Term Loan
Commitments” means with respect to each Bank, such Bank’s British Pounds
Sterling Multicurrency Revolving/Term Loan Commitment, Canadian Dollar
Multicurrency Revolving/Term Loan Commitment, Euro Multicurrency Revolving/Term
Loan Commitment and Dollar Multicurrency Revolving/Term Loan Commitment.  The initial aggregate amount of the Banks’ Multicurrency
Revolving/Term Loan Commitments is the Dollar Equivalent as of the Closing Date
of their British Pounds Sterling Multicurrency Revolving/Term Loan Commitments,
Canadian Dollar Multicurrency Revolving/Term Loan Commitments, Euro
Multicurrency Revolving/Term Loan Commitments and Dollar Multicurrency
Revolving/Term Loan Commitments and thereafter, subject to Section 2.1(d) shall
be $295,000,000.


 


“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
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.


 


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


 


20

















 


“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 Exhibits G-1, G-2 and G-3 hereto,
respectively, evidencing the obligation of the Borrower to repay Term Loans,
Revolving Credit Loans and Swingline Loans, respectively and “Note” means any
one of such promissory notes issued hereunder.


 


“Notice of Borrowing” means a notice
from the Borrower in accordance with Section 2.3 or Section 2.4.


 


“Notice of Interest Rate Election” has
the meaning set forth in Section 2.7.


 


“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.


 


21

















 


“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,
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;


 


22

















 


(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 1.1C;


 


(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, (x) if the
loans and other obligations under the First Priority Credit Agreement have been
paid in full and the commitments thereunder have been terminated, $750,000,000
and (y) if otherwise, $350,000,000.


 


“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)(A)(x) if the loans
and other obligations under the First Priority Credit Agreement have been paid
in full and the commitments thereunder have been terminated, $750,000,000 and (y) if
otherwise, $350,000,000 minus (B) 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.


 


23
















 


“Pledged
Collateral List” means the ranked list of Collateral set forth on Schedule
1.1D, 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 Fixed Charge Coverage Ratio Payment
Event or any Listed Eligible Asset Payment Event.


 


“principal
financial center” means, when used in reference to an Alternate Currency, (a) in
the case of British Pounds Sterling, London, England, (b) in the case of
Euros, London, England, and (c) in the case of Canadian Dollars, Toronto,
Canada.


 


“Priority
of Payments” has the meaning set forth in Section 2.15.


 


“Pro Rata
Share” means, for any Bank, a fraction (expressed as a percentage), the
numerator of which shall be the amount of such Bank’s Revolving Credit
Commitment. Multicurrency Revolving/Term Loan Commitment or Dollar Term Loan
Commitment, as applicable, and the denominator of which shall be the aggregate
amount of all of the Banks’ corresponding Revolving Credit Commitments,
Multicurrency Revolving/Term Loan Commitment or Dollar Term Loan Commitments,
as adjusted from time to time in accordance with the provisions of this
Agreement (or with respect to Revolving Credit Commitments following the
termination of the Revolving Credit Commitments, the numerator of which shall
be the amount of such Bank’s Revolving Credit Loans outstanding and the
denominator of which shall be the aggregate amount of all of the Banks’
Revolving Credit Loans outstanding).  For
the avoidance of doubt, the term “Pro Rata Share”, as used herein, does not
apply to the Revolving Credit Commitments, Multicurrency Revolving/Term Loan
Commitments and Dollar Term Loan Commitments taken as a whole (either for any
Bank individually or for all of the Banks in the aggregate) or to any Dollar
Term Loans following the termination of the Dollar Term Loan Commitments.


 


“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.


 


“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


 


24

















 


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:


 


(a)                                  if with respect to a
Euro-Currency Loan in Dollars or in any Alternate Currency other than Euros,
two Euro-Currency Business Days before the first day of such Interest Period,
or


 


(b)                                 if with respect to an
Alternate Currency Loan in Euros, two TARGET Days before the first day of such
Interest Period,


 


unless market practice differs
in the relevant interbank market for an Alternate Currency (other than Euros),
in which case the Quotation Date for that Alternate Currency will be determined
by the Administrative Agent in accordance with market practice in the relevant
interbank market (and if quotations would normally be given by leading banks in
the relevant interbank market on more than one day, the Quotation Date will be
the last of those days).


 


“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 unpaid principal amount of Term Loans (or, in the
case of Multicurrency Revolving/Term Loans during the Multicurrency Revolving
Loan Period, if the Multicurrency Revolving/Term Loan Commitments exceed the
Multicurrency Term Loans, the Multicurrency Revolving/Term Loan Commitments)
then outstanding hereunder and (ii) the aggregate amount of Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments have
been terminated, the aggregate amount of Revolving Credit Loans and Letters of
Credit then outstanding hereunder; provided that in the case of
Swingline Loans, the


 


25

















 


amount of each
Bank’s funded participation interest in such Swingline Loans shall be
considered for purposes hereof as if it were a direct loan and not a
participation interest, and the aggregate amount of Swingline Loans owing to
the Swingline Lender shall be considered for purposes hereof as reduced by the
amount of such funded participation interests; provided  further
that the undrawn Commitments of, and Loans held by, any Defaulting Bank shall
be excluded for purposes of making a determination of Required Banks.


 


“Revolving
Credit Borrowing” means a borrowing pursuant to Section 2.2 consisting
of simultaneous Revolving Credit Loans of the same Type and currency and, in
the case of Revolving Credit Loans that are Euro-Currency Loans, having the
same Interest Period.


 


“Revolving
Credit Commitment” means with respect to each Bank, the amount set forth on
Schedule 1.1A next to the name of such Bank as such Bank’s “Revolving
Credit Commitment” (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 Revolving Credit Commitment), as such amount may be reduced or
increased from time to time in connection with any assignment pursuant to Section 9.6
or reduced in accordance with the terms of this Agreement.  The initial aggregate amount of the Banks’
Revolving Credit Commitments is $360,000,000.


 


“Revolving
Credit Loan” means a revolving loan made by a Bank in British Pounds
Sterling, Canadian Dollars, Dollars or Euros, as applicable,  pursuant to Section 2.2, as well as loans
required to be made by a Bank pursuant to Section 2.19 to reimburse a
Fronting Bank for a Letter of Credit that has been drawn down; provided that,
if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term “Revolving Credit
Loan” shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.


 


“Revolving
Facility Amount” has the meaning set forth in Section 2.2.


 


“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 this Agreement and the loans, letters of credit
and commitments documented under the 2011 Second Priority Credit Agreement.


 


“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 for the benefit of the
First Priority Secured Parties.


 


“Secured
Bank Facilities” means the Second Priority Bank Facilities and the loans
and commitments documented under the First Priority Credit 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


 


26

















 


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 2.23(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 2.23(b) or Section 2.23(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 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


 


27

















 


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 unpaid principal amount of Term Loans (or, in the
case of Multicurrency Revolving/Term Loans during the Multicurrency Revolving
Loan Period, if the Multicurrency Revolving/Term Loan Commitments exceed the
Multicurrency Term Loans, the Multicurrency Revolving/Term Loan Commitments)
then outstanding hereunder and (ii) the aggregate amount of Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments have
been terminated, the aggregate amount of Revolving Credit Loans and Letters of
Credit then outstanding hereunder; provided that in the case of
Swingline Loans, the amount of each Bank’s funded participation interest in
such Swingline Loans shall be considered for purposes hereof as if it were a
direct loan and not a participation interest, and the aggregate amount of
Swingline Loans owing to the Swingline Lender shall be considered for purposes
hereof as reduced by the amount of such funded participation interests; provided
further that the undrawn Commitments of, and Loans held by, any
Defaulting Bank shall be excluded for purposes of making a determination of
Super-Majority Banks.


 


“Swingline
Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.4.


 


“Swingline
Commitment” has the meaning set forth in Section 2.4(a).


 


“Swingline
Lender” means JPMorgan Chase Bank, N.A., in its capacity as swingline
lender hereunder, and its permitted successors in such capacity in accordance
with the terms of this Agreement or any other Bank that shall consent thereto
as may be designated by Borrower from time to time.


 


“Swingline
Loan” means a loan in Dollars made by the Swingline Lender pursuant to Section 2.4.


 


“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.


 


“TARGET Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer payment system is open for settlement of payments in Euros.


 


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


 


28

















 


“Term”
has the meaning set forth in Section 2.10.


 


“Term Loan”
means a Multicurrency Revolving/Term Loan or a Dollar Term Loan.


 


“Term Loan
Borrowing” means a borrowing pursuant to Section 2.1 consisting of
simultaneous Multicurrency Revolving/Term Loans or Dollar Term Loans in the
same currency and of the same Type and, in the case of any such Term Loans that
are Euro-Currency Loans, having the same Interest Period.


 


“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.


 


“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.


 


“Type”
means as to any Loan or Borrowing its nature as a Base Rate Loan, a
Euro-Currency Loan, a Base Rate Borrowing or a Euro-Currency Borrowing, as the
case may be.


 


“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.


 


29

















 


“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 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.


 


ARTICLE II


 


THE CREDITS


 


Section 2.1. Term Commitments.  (a)  Subject to the terms and conditions
set forth in this Agreement, each Bank severally agrees to make Multicurrency
Revolving/Term Loans to the Borrower on the Closing Date as follows:


 


(i)                  a
Multicurrency Revolving/Term Loan in British Pounds Sterling or Dollars or a
combination thereof in such currencies and amounts as requested by the Borrower
and in an


 


30

















 


amount not to exceed the amount of the British Pounds Sterling
Multicurrency Revolving/Term Loan Commitment of such Bank (or the Dollar
Equivalent Amount thereof);


 


(ii)               a
Multicurrency Revolving/Term Loan in Canadian Dollars or Dollars or a
combination thereof in such currencies and amounts as requested by the Borrower
and in an amount not to exceed the amount of the Canadian Dollar Multicurrency
Revolving/Term Loan Commitment of such Bank (or the Dollar Equivalent Amount
thereof);


 


(iii)            a
Multicurrency Revolving/Term Loan in Euros or Dollars or a combination thereof
in such currencies and amounts as requested by the Borrower  and in an amount not to exceed the amount of
the Euro Multicurrency Revolving/Term Loan Commitment of such Bank (or the
Dollar Equivalent Amount thereof); and


 


(iv)           a
Multicurrency Revolving/Term Loan in Dollars in an amount not to exceed the
amount of the Dollar Multicurrency Revolving/Term Loan Commitment of such Bank.


 


(b)                                 Subject
to the terms and conditions set forth in this Agreement, each Bank severally
agrees to make a Dollar Term Loan in Dollars to the Borrower on the Closing
Date in an amount not to exceed the amount of the Dollar Term Loan Commitment
of such Bank.


 


(c)                                  The
Multicurrency Revolving/Term Loans or Dollar Term Loans may from time to time
be Euro-Currency Loans or, if in Dollars, Base Rate Loans or a combination
thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with Section 2.3 and Section 2.7.  Except pursuant to clause (d) below
during the Multicurrency Revolving Loan Period, any amount of Term Loans repaid
or prepaid may not be reborrowed.


 


(d)                                 Each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make Multicurrency Revolving/Term Loans to the Borrower at any time and from
time to time during the period commencing on the Closing Date and ending on the
date that is 60 days after the Closing Date (the “Multicurrency Revolving
Loan Period”), in Dollar Equivalent Amounts such that the aggregate
principal Dollar Equivalent Amount of Multicurrency Revolving/Term Loans by
such Bank at any one time outstanding shall not exceed the Dollar Equivalent
Amount of its Multicurrency Revolving/Term Loan Commitment.  Each Euro-Currency Borrowing outstanding
under this Section 2.1(d) shall be in an aggregate principal Dollar
Equivalent Amount of approximately $5,000,000 (or such other amount as the
Administrative Agent shall otherwise approve), or an integral multiple of a
Dollar Equivalent Amount of approximately $1,000,000 in excess thereof, and
each Base Rate Borrowing shall be in an aggregate principal Dollar Equivalent
Amount of approximately $1,000,000 (or such other amount as the Administrative
Agent shall otherwise approve), or an integral multiple of a Dollar Equivalent
Amount of approximately $1,000,000 in excess thereof and shall be made from the
several Banks ratably in proportion to their respective Multicurrency
Revolving/Term Loan Commitment. In no event shall the sum of the aggregate
Dollar Equivalent Amount of Multicurrency Revolving/Term Loans outstanding at
any time exceed $295,000,000 (as reduced by repayments thereon where the other
Term Loans are ratably prepaid substantially concurrently therewith).  Subject to the limitations set forth herein,
any amounts of Multicurrency Revolving/Term Loans repaid during the
Multicurrency Revolving Loan Period may be reborrowed under any of the Multicurrency
Revolving/Term Loan Commitments at any 


 


31

















 


time during the Multicurrency Revolving Loan
Period, provided that (x) the aggregate principal amount of the
Multicurrency Revolving/Term Loans in British Pounds Sterling shall not at any
time during the Multicurrency Revolving Loan Period exceed the British Pounds
Sterling Multicurrency Revolving/Term Loan Commitments, (y) the aggregate
principal amount of the Multicurrency Revolving/Term Loans in Canadian Dollars
shall not at any time during the Multicurrency Revolving Loan Period exceed the
Canadian Dollar Multicurrency Revolving/Term Loan Commitments and (z) the
aggregate principal amount of the Multicurrency Revolving/Term Loans in Euros
shall not at any time during the Multicurrency Revolving Loan Period exceed the
Euro Multicurrency Revolving/Term Loan Commitments.  Commencing on the first day after the end of
the Multicurrency Revolving Loan Period, any amount of Multicurrency
Revolving/Term Loans repaid or prepaid may not be reborrowed.


 


(e)                                  As
provided in Section 9.6(c), the Multicurrency Term Loans held by any Bank
may only be assigned on a ratable basis with the Revolving Credit Commitment of
such Bank.


 


Section 2.2. Revolving
Credit Commitments.  Each Bank
severally agrees, on the terms and conditions set forth in this Agreement, to
make Revolving Credit Loans (including Revolving Credit Loans that are
Euro-Currency Loans denominated in Alternate Currencies) to the Borrower and
participate in Letters of Credit issued by the Fronting Bank on behalf of the
Borrower pursuant to this Article at any time and from time to time during
the Term hereof in Dollar Equivalent Amounts such that the aggregate principal
Dollar Equivalent Amount of Revolving Credit Loans by such Bank at any one time
outstanding plus such Bank’s Pro Rata Share of Swingline Loans outstanding
together with such Bank’s Pro Rata Share of the Letter of Credit Usage at such
time shall not exceed the Dollar Equivalent Amount of its Revolving Credit
Commitment.  Each Euro-Currency Borrowing
outstanding under this Section 2.2 shall be in an aggregate principal
Dollar Equivalent Amount of approximately $5,000,000, or an integral multiple
of a Dollar Equivalent Amount of approximately $1,000,000 in excess thereof,
and each Base Rate Borrowing shall be in an aggregate principal Dollar
Equivalent Amount of approximately $1,000,000, or an integral multiple of a
Dollar Equivalent Amount of approximately $1,000,000 in excess thereof (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.2(b), or in any Dollar Equivalent Amount required to
reimburse the Fronting Bank for any drawing under any Letter of Credit or to
repay the Swingline Lender the amount of any Swingline Loan) and, other than with
respect to Swingline Loans, shall be made from the several Banks ratably in
proportion to their respective Revolving Credit Commitments. In no event shall
the sum of the aggregate Dollar Equivalent Amount of Revolving Credit Loans and
Swingline Loans outstanding at any time, plus the Dollar Equivalent Amount of
the Letter of Credit Usage, exceed $360,000,000 (as adjusted pursuant to
Section 2.11(d), Section 2.12 or as may otherwise be provided in this
Agreement, the “Revolving Facility Amount”).  In no event shall any Revolving Credit Loans
or Swingline Loans be borrowed or Letters of Credit be issued if as a result
thereof any prepayment would then be required under
Section 2.12(c) (unless such prepayment is then being made).  Subject to the limitations set forth herein,
any amounts of Revolving Credit Loans repaid may be reborrowed.


 


Section 2.3. 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, with respect to Dollar Loans,
and London time, with respect to Alternate Currency Loans)


 


32

















 


(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, (y) the third (3rd) Euro-Currency Business Day
before each Euro-Currency Borrowing, or (z) the fourth (4th) Euro-Currency Business Day before each
Euro-Currency Borrowing denominated in an Alternate Currency, specifying:


 


(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)                                                        if the Loans comprising such Borrowing are
made on the Closing Date, whether such Loans are to be Multicurrency
Revolving/Term Loans, Dollar Term Loans or Revolving Credit Loans,


 


(iii)                                                     the aggregate amount of such Borrowing,


 


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


 


(v)                                                         in the case of Alternate Currency Loans, the
type and amount of the Alternate Currency being requested,


 


(vi)                                                      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,


 


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


 


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


 


Notwithstanding
the foregoing or any other provision hereof, on the Closing Date, the Borrower
shall be deemed to have made Borrowings under the Multicurrency Revolving/Term
Loan Commitments, the Dollar Term Loan Commitments and the Revolving Credit
Commitments as provided in the next three sentences.  Such deemed Borrowings under the Multicurrency
Revolving/Term Loan Commitments shall be in aggregate amounts in British Pounds
Sterling, Canadian Dollars, Euros and Dollars respectively equal to the British
Pounds Sterling Multicurrency Revolving/Term Loan Commitments, the Canadian
Dollar Multicurrency Revolving/Term Loan Commitments, the Euro Multicurrency
Revolving/Term Loan Commitments and the Dollar Multicurrency Revolving/Term
Loan Commitments and shall be Base Rate Loans and Euro-Currency Loans in the
same respective amounts (and, in the case of any Euro-Currency Borrowing, having
an Interest Period with the same remaining term) as the respectively equivalent
loans (or any ratable portions of such loans) in British Pounds Sterling,
Canadian Dollars, Euros and Dollars held by the lenders under the Existing 2007
Credit Agreement immediately prior to the Closing Date that are designated by
the Borrower in such Notice of Borrowing to be converted to such Multicurrency
Revolving/Term Loans hereunder on the Closing Date.  Such deemed Borrowings under the Dollar Term
Loan Commitments shall be in an aggregate amount in Dollars equal to the Dollar
Term Loan Commitments and shall be Base Rate Loans and Euro-Currency Loans in
the same respective amounts (and, in the case of 


 


33

















 


any Euro-Currency
Borrowing, having an Interest Period with the same remaining term) as the
respectively equivalent loans (or any ratable portions of such loans) in
Dollars held by the lenders under the Existing 2007 Credit Agreement
immediately prior to the Closing Date that are designated by the Borrower in
such Notice of Borrowing to be converted to such Term Loans hereunder on the
Closing Date.  Such deemed Borrowings
under the Revolving Credit Commitments shall be in the respective aggregate
amounts in Dollars and Alternative Currencies as specified by the Borrower and
shall be Base Rate Loans and Euro-Currency Loans, in the same respective
amounts (and, in the case of any Euro-Currency Borrowing, having an Interest
Period with the same remaining term) as the respectively equivalent loans (or
any ratable portion of such loans) in Dollars and such Alternate Currencies
held by the lenders under the Existing 2007 Credit Agreement immediately prior
to the Closing Date that are designated by the Borrower in such Notice of
Borrowing to be converted to Revolving Credit Loans hereunder on the Closing
Date (it being acknowledged that (a) on, or promptly following, the
Closing Date there may also be prepayments and reborrowings under the Revolving
Credit Commitments in order to provide for (i) the prepayment of any loans
in Alternate Currencies held by lenders under the Existing 2007 Credit
Agreement who have no commitments under this Agreement on the Closing Date and (ii) the
prepayment of Revolving Credit Loans in Dollars so as to make Revolving Credit
Commitments available for the transactions referred to in foregoing clauses (i) and
(ii) and (b) in the event of any such prepayments and reborrowings, Section 2.16
shall apply to the same extent as if such prepayments and reborrowings occurred
after the Closing Date).


 


(b)                                 The Borrower shall give the Administrative
Agent, and the Fronting Bank, written notice in the event that it desires to
have Letters of Credit issued, or to have Letters of Credit issued on behalf of
a Subsidiary, hereunder no later than 1:00 p.m. (New York City time) at
least four (4) Business Days prior to, but excluding, the date of such
issuance.  Each such notice shall specify
(i) the individual amount of each Letter of Credit, (ii) the number
of Letters of Credit to be issued, (iii) the date of such issuance (which
shall be a Business Day), (iv) the name and address of the beneficiary, (v) the
expiration date of the Letter of Credit (which in no event shall be later than
the date which is the first anniversary of the Maturity Date), (vi) the
purpose and circumstances for which such Letter of Credit is being issued, (vii) the
terms upon which each such Letter of Credit may be drawn down (which terms
shall not leave any discretion to Fronting Bank) and (viii) that no
Default or Event of Default has occurred or is continuing.  Each such notice may be revoked
telephonically by the Borrower to the Fronting Bank and the Administrative
Agent any time prior to the issuance of the Letter of Credit by the Fronting
Bank; provided such revocation is confirmed in writing by the Borrower
to the Fronting Bank and the Administrative Agent within one (1) Business
Day by facsimile.  Notwithstanding
anything contained herein to the contrary, the Borrower shall complete and deliver
to the Fronting Bank, at the Fronting Bank’s request, any required
documentation in connection with any requested Letter of Credit no later than
the second (2nd) Business Day prior to the date of issuance thereof.  No later than 1:00 p.m. (New York City
time) on the date that is four (4) Business Days prior to, but excluding,
the date of issuance, the Borrower shall specify a precise description of the
documents and the verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit, which if presented by such beneficiary
prior to the expiration date of the Letter of Credit would require the Fronting
Bank to make a payment under the Letter of Credit; provided, that Fronting Bank
may, in its reasonable judgment, require changes in any such documents and
certificates only in conformity with changes in customary and commercially
reasonable practice or law and; provided  further, that no Letter
of Credit shall require payment


 


34

















 


against a conforming draft to be made thereunder on the second Business
Day following the date that such draft is presented if such presentation is
made later than 1:00 p.m. New York City time (except that if the
beneficiary of any Letter of Credit requests at the time of the issuance of its
Letter of Credit that payment be made on the same Business Day against a
conforming draft, such beneficiary shall be entitled to such a same day draw; provided
such draft is presented to the Fronting Bank no later than 1:00 p.m. (New
York City time) and provided further the Borrower shall have requested to the
Fronting Bank and the Administrative Agent that such beneficiary shall be
entitled to a same day draw). In determining whether to pay on such Letter of
Credit, the Fronting Bank shall be responsible only to determine that the
documents and certificates required to be delivered under the Letter of Credit
have been delivered and that they comply on their face with the requirements of
that Letter of Credit.


 


Section 2.4. Swingline Loan Subfacility.


 


(a)                                  Swingline Commitment. 
Subject to the terms and conditions of this Section 2.4, the
Swingline Lender, in its individual capacity, agrees to make certain revolving
credit loans denominated in Dollars to the Borrower (each a “Swingline Loan”
and, collectively, the “Swingline Loans”) at any time and from time to
time during the Term hereof; provided, however, that the aggregate amount of
Swingline Loans outstanding at any time shall not exceed the lesser of (i) $25,000,000,
and (ii) the aggregate Revolving Credit Commitments less the sum of (A) all
Revolving Credit Loans and Swingline Loans then outstanding, and (B) the
Letter of Credit Usage (the “Swingline Commitment”); provided
that the Swingline Lender shall not make any Swingline Loan available if, after
giving effect thereto the aggregate principal amount of the sum of (i) the
Swingline Lender’s Swingline Loans then outstanding, (ii) all other
Revolving Loans held by the Swingline Lender then outstanding and (iii) the
Swingline Lender’s Pro Rata Share of the Letter of Credit Usage at such time,
would exceed such Swingline Lender’s Revolving Credit Commitment. Subject to the limitations set forth
herein, any amounts repaid in respect of Swingline Loans may be reborrowed.


 


(b)                                 Swingline Borrowings.


 


(i)                                     Notice of Borrowing.  With
respect to any Swingline Borrowing, the Borrower shall give the Swingline
Lender and the Administrative Agent notice in writing which is received by the
Swingline Lender and Administrative Agent not later than 2:00 p.m. (New
York City time) on the proposed date of such Swingline Borrowing (and confirmed
by telephone by such time), specifying (A) that a Swingline Borrowing is
being requested, (B) the amount of such Swingline Borrowing, (C) the
proposed date of such Swingline Borrowing, which shall be a Business Day and (D) that
no Default or Event of Default has occurred and is continuing both before and
after giving effect to such Swingline Borrowing.  Such notice shall be irrevocable.


 


(ii)                                  Minimum Amounts.  Each
Swingline Borrowing shall be in a minimum principal amount of $1,000,000, or an
integral multiple of $100,000 in excess thereof.


 


35
















 


(iii)          Repayment of Swingline Loans.  Each
Swingline Loan shall be due and payable on the earliest of (A) 5 Business
Days from and including the date of the applicable Swingline Borrowing, (B) the
date of the next Revolving Credit Borrowing or (C) the Maturity Date.  If, and to the extent, any Swingline Loans
shall be outstanding on the date of any Revolving Credit Borrowing, such
Swingline Loans shall first be repaid from the proceeds of such Revolving
Credit Borrowing prior to the disbursement of the same to the Borrower.  If, and to the extent, a Revolving Credit
Borrowing is not requested prior to the Maturity Date or the end of the 5
Business Day period after a Swingline Borrowing, or unless the Borrower shall
have notified the Administrative Agent and the Swingline Lender prior to 1:00 p.m.
(New York City time) on the fourth (4th)
Business Day after the Swingline Borrowing that the Borrower intends to
reimburse the Swingline Bank for the amount of such Swingline Borrowing with
funds other than proceeds of the Revolving Credit Loans, the Borrower shall be
deemed to have requested a Revolving Credit Borrowing comprised entirely of
Base Rate Loans in the amount of the applicable Swingline Loan then
outstanding, the proceeds of which shall be used to repay such Swingline Loan
to the Swingline Lender.  In addition, if
(x) the Borrower does not repay the Swingline Loan on or prior to the end
of such 5 Business Day period, or (y) a Default or Event of Default shall
have occurred during such 5 Business Day period, the Swingline Lender may, at
any time, in its sole discretion, by written notice to the Borrower and the
Administrative Agent, demand repayment of its Swingline Loans by way of a
Revolving Credit Borrowing, in which case the Borrower shall be deemed to have
requested a Revolving Credit Borrowing comprised entirely of Base Rate Loans in
the amount of such Swingline Loans then outstanding, the proceeds of which
shall be used to repay such Swingline Loans to the Swingline Lender.  Any Revolving Credit Borrowing which is
deemed requested by the Borrower in accordance with this Section 2.4(b)(iii) is
hereinafter referred to as a “Mandatory Borrowing”.  Each Bank hereby irrevocably agrees to make
Revolving Credit Loans promptly upon receipt of notice from the Swingline
Lender of any such deemed request for a Mandatory Borrowing in the amount and
in the manner specified in the preceding sentences and on the date such notice
is received by such Bank (or the next Business Day if such notice is received
after 12:00 noon (New York City time)) notwithstanding (I) that the amount
of the Mandatory Borrowing may not comply with the minimum amount of Revolving
Credit Borrowings otherwise required hereunder, (II) whether any
conditions specified in Section 3.2 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure of any such
deemed request for a Revolving Credit Borrowing to be made by the time
otherwise required in Section 2.3, (V) the date of such Mandatory
Borrowing (provided that such date must be a Business Day), or (VI) any
termination of the Revolving Credit Commitments immediately prior to such
Mandatory Borrowing or contemporaneously therewith; provided, however, that no
Bank shall be obligated to make Revolving Credit Loans in respect of a
Mandatory Borrowing if a Default or an Event of Default then exists and the
applicable Swingline Loan was made by the Swingline Lender without receipt of a
written Notice of Borrowing in the form specified in subclause (i) above
or after 


 


36

















 


Administrative
Agent has delivered a notice of Default or Event of Default which has not been
rescinded.


 


(iv)          Purchase of Participations.  In
the event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Bank hereby agrees that it shall forthwith purchase (as of
the date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payment received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Bank to share in such
Swingline Loans ratably based upon its Pro Rata Share of the Revolving Credit
Commitments (determined before giving effect to any termination of the
Revolving Credit Commitments pursuant to Section 6.2); provided
that (A) all interest payable on the Swingline Loans with respect to any
participation shall be for the account of the Swingline Lender until but
excluding the day upon which the Mandatory Borrowing would otherwise have
occurred, and (B) in the event of a delay between the day upon which the
Mandatory Borrowing would otherwise have occurred and the time any purchase of
a participation pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay to the Swingline Lender interest on the principal
amount of such participation for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the rate equal to the Federal Funds Rate,
for the two (2) Business Days after the date the Mandatory Borrowing would
otherwise have occurred, and thereafter at a rate equal to the Base Rate.  Notwithstanding the foregoing, no Bank shall
be obligated to purchase a participation in any Swingline Loan if a Default or
an Event of Default then exists and such Swingline Loan was made by the
Swingline Lender without receipt of a written Notice of Borrowing in the form
specified in subclause (i) above or after Administrative Agent has
delivered a notice of Default or Event of Default which has not been rescinded.


 


(c)           Interest Rate.  Each
Swingline Loan shall bear interest on the outstanding principal amount thereof,
for each day from the date such Swingline Loan is made until the date it is
repaid, at a rate per annum equal to the Federal Funds Rate plus the Applicable
Margin for Euro-Currency Loans for such day.


 


Section 2.5. 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 2.3 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 2.16.


 


37

















 


(b)           Not later than 2:00 p.m. (New York City time or, in the case of
any Alternate Currency Borrowing, London time) on the date of each Borrowing
(including without limitation each Mandatory Borrowing) as indicated in the
applicable Notice of Borrowing, each Bank shall (except as provided in
subsection (d) of this Section 2.5) make available its Pro Rata Share
of such Borrowing in Federal funds or the applicable Alternate Currency
immediately available in New York, New York (or, in the case of any Alternate
Currency Borrowing, the principal financial center of the Alternate Currency in
question), to the Administrative Agent at its address referred to in Section 9.1.  If the Borrower has requested the issuance of
a Letter of Credit, no later than 1:00 p.m. (New York City time) on the
date of such issuance as indicated in the notice delivered pursuant to Section 2.3(b),
the Fronting Bank shall issue such Letter of Credit for the amount so requested
and deliver the same to, or as directed in writing by, the Borrower, with a
copy thereof to the Administrative Agent. 
Immediately upon the issuance of each Letter of Credit by the Fronting
Bank, the Fronting Bank shall be deemed to have sold and transferred to each
other Bank, and each such other Bank shall be deemed, and hereby agrees, to
have irrevocably and unconditionally purchased and received from the Fronting
Bank, without recourse or warranty, an undivided interest and a participation
in such Letter of Credit, any drawing thereunder, and its obligation to pay its
Pro Rata Share with respect thereto, and any security therefor or guaranty
pertaining thereto, in an amount equal to such Bank’s ratable share
thereof.  Upon any change in any of the
Revolving Credit Commitments in accordance herewith, there shall be an
automatic adjustment to such participations to reflect such changed
shares.  The Fronting Bank shall have the
primary obligation to fund any and all draws made with respect to such Letter
of Credit notwithstanding any failure of a participating Bank to fund its
ratable share of any such draw.  The
Administrative Agent will instruct the Fronting Bank to make such Letter of
Credit available to the Borrower and the Fronting Bank shall make such Letter of
Credit available to the Borrower, at its aforesaid address or at such address
in the United States or at such address in Europe, the United Kingdom, Canada
or the United States as the Borrower shall request on the date of Borrowing.


 


(c)           Not later than 3:00 p.m. (New York City time) on the date of each
Swingline Borrowing as indicated in the applicable Notice of Borrowing, the
Swingline Lender shall make available such Swingline Borrowing in Federal funds
immediately available in New York, New York to the Administrative Agent at its
address referred to in Section 9.1.


 


(d)           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 2.5,
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 with respect to Dollar Loans
and at the Administrative Agent’s cost of funds for the applicable Alternate
Currency with respect to Alternate Currency Loans, 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 


 


38

















 


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 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 2.5(d) 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 2.5(b) hereof
shall not relieve any other Bank of its obligations to fund its Commitment, in
accordance with the provisions hereof.


 


(e)           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 undrawn 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 (e) shall affect the
obligations due to such Defaulting Bank.


 


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


 


Section 2.6. Notes.


 


(a)           Each Bank may, by notice to the Borrower and the Administrative Agent,
request that its various Dollar Term Loans, Multicurrency Revolving/Term Loans,
Revolving Credit Loans and Swingline Loans be evidenced by separate Notes, each
in an amount equal to the aggregate unpaid principal amount of the applicable
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 Term Loan Note shall be in
substantially the form of Exhibit G-1 hereto, each such Multicurrency
Revolving/Term Loan Note shall be substantially in the form of Exhibit G-2
hereto, each such Revolving Credit Loan Note shall be in substantially the form
of Exhibit G-3 hereto and each such Swingline Loan Note shall be in
substantially the form of Exhibit G-4. 
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.


 


39

















 


(b)           Upon receipt of any Bank’s Note(s) pursuant to Section 3.1(a),
the Administrative Agent shall forward such Note(s) 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(s), 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 Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note(s) and to
attach to and make a part of its Note(s) a continuation of any such
schedule as and when required.


 


(c)           The Term Loans and Revolving Credit Loans shall mature, and the
principal amount thereof shall be due and payable, on the Maturity Date.  The Swingline Loans shall mature, and the
principal amount thereof shall be due and payable, in accordance with Section 2.4(b)(iii).


 


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


 


Section 2.7. 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 or as
otherwise provided in Section 2.4 with respect to Mandatory
Borrowings.  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
and without affecting the currency of any particular Loan), 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 2.16.


 


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 


 


40

















 


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.  Loans in any currency may
not be converted to be Loans in a different currency.


 


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


 


(i)                    if the applicable Loans are Multicurrency
Revolving/Term Loans, Dollar Term Loans or Revolving Credit Loans;


 


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


 


(iii)                  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;


 


(iv)                  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


 


(v)                   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 Dollar Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto and such Alternate Currency Loans shall be continued
as Euro-Currency Loans with an Interest Period of one month.


 


Section 2.8. 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 2.7,
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 


 


41

















 


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 any of the Loans,
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.


 


(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 2.9. Fees.


 


(a)           Facility Fee.  For
the period beginning on the date hereof and ending on the date the Obligations
are paid in full and this Agreement is terminated (the “Facility Fee Period”),
the Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their respective Term Loans outstanding, Revolving
Credit Commitments and any unused and available portion of the Multicurrency
Revolving/Term Loan Commitment, a facility fee on the aggregate Term Loans
outstanding, Revolving Credit Commitments and any unused and available portion
of the Multicurrency Revolving/Term Loan Commitment, in the case of the
Revolving Credit Commitments, regardless of usage, at the Applicable Fee
Percentage.  In the event that the
Revolving Credit Commitments are terminated but Revolving Credit Loans or
Letters of Credit remain outstanding, then, the facility fee shall be paid on
the aggregate outstanding Loans and Letter of Credit Usage.  The facility fee shall be payable in arrears
on the last Business Day of each March, June, September and December during
the Facility Fee Period and on the Maturity Date.


 


(b)           Letter of Credit Fee. 
During the Term, the Borrower shall pay to the Administrative Agent, for
the account of the Banks in proportion to their interests in respect of issued
and undrawn Letters of Credit, a fee (a “Letter of Credit Fee”) in an
amount, provided that no Event of Default shall have occurred and be
continuing, equal to a rate per annum equal to the then percentage per annum of
the Applicable Margin with respect to Euro-Currency Loans, on the daily average
of such issued and undrawn Letters of Credit, which fee shall be payable, in
arrears, on the last Business Day of each March, June, September and December during
the Term and on the Maturity Date.  From
the occurrence, and during the continuance, of an Event of 


 


42

















 


Default, such fee shall be increased by two
percent (2%) per annum on the daily average of such issued and undrawn Letters
of Credit.


 


(c)           Fronting Bank Fee.  The
Borrower shall pay any Fronting Bank, for its own account, a fee (a “Fronting
Bank Fee”) at a rate per annum equal to the greater of (i) 0.10% of
the daily average issued and undrawn amount of each outstanding Letter of
Credit issued by such Fronting Bank and (ii) $1,000, which fee shall be in
addition to and not in lieu of, the Letter of Credit Fee.  The Fronting Bank Fee shall be payable in
arrears on the last Business Day of each March, June, September and December during
the Term and on the Maturity Date.


 


(d)           Fees Non-Refundable.  All
fees set forth in this Section 2.9 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 2.10. Maturity Date.  The term (the “Term”) of the Revolving
Credit Commitments (and each Bank’s obligations to make Revolving Credit Loans
and to participate in Letters of Credit hereunder) shall terminate and expire,
and the Borrower shall return or cause to be returned all Letters of Credit to
the Fronting Bank, on the 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 and any payment in respect of such Loans shall be made in the currency in
which such Loans are denominated.


 


Section 2.11. Optional
Prepayments.  Subject, in each case,
to the Priority of Payments:


 


(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.  The
Borrower may, from time to time on any Business Day so long as prior notice is
given to the Administrative Agent and Swingline Lender no later than 1:00 p.m.
(New York City time) on the day on which Borrower intends to make such
prepayment, prepay any Swingline Loans in whole or in part in amounts
aggregating $100,000 or a higher integral multiple of $100,000 (or, if less,
the aggregate outstanding principal amount of all Swingline Loans then
outstanding) 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 (or the Swingline Lender in the case of Swingline
Loans) 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, with respect to Dollar denominated Loans, and London time, with
respect to Alternate Currency Loans) prepay all, or from time to time in part
in amounts aggregating the Dollar Equivalent Amount of approximately $5,000,000
or more, of 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 


 


43

















 


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 2.16.  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 return any undrawn Letter of Credit to the
Fronting Bank in whole, but not in part, and the Fronting Bank within a reasonable
period of time shall give the Administrative Agent and each of the Banks notice
of such return.


 


(d)           The Borrower may at any time and from time to time cancel all or any
part of the unused Revolving Credit Commitments in amounts aggregating
$25,000,000 or a larger multiple of $1,000,000 by the delivery to the
Administrative Agent of a notice of cancellation within the applicable time
periods set forth in Section 2.11(a) and (b) if there are
Revolving Credit Loans then outstanding or, if there are no Revolving Credit
Loans outstanding at such time as to which the Revolving Credit Commitments
with respect thereto are being canceled, upon at least three (3) Business
Day’s  notice to the Administrative
Agent, whereupon, in either event, all or such portion of the Revolving Credit
Commitments, as applicable, shall terminate as to the applicable Banks, pro
rata on the date set forth in such notice of cancellation, and, if there are
any Revolving Credit Loans then outstanding, the Borrower shall prepay, as applicable,
all or such portion of Revolving Credit Loans outstanding on such date that is
greater than the aggregate Revolving Credit Commitments after giving effect to
such termination in accordance with the requirements of Section 2.11(a) and
(b).  The Borrower shall be permitted to
designate in its notice of cancellation which Group of Revolving Credit Loans,
if any, are to be prepaid.  In the event
the Borrower elects to cancel all or any portion of the Revolving Credit
Commitments pursuant to this Section 2.11(d), such amounts may not be
borrowed or reborrowed.  A reduction of
the Revolving Credit Commitments pursuant to this Section 2.11(d) shall
not effect a reduction in the Swingline Commitment (unless so elected by the
Borrower) until the aggregate Revolving Credit Commitments have been reduced to
an amount equal to or less than the Swingline Commitment.  A
reduction of the Revolving Credit Commitments pursuant to this Section 2.11(d) shall
not effect a reduction in the Swingline Commitment (unless so elected by the
Borrower) until the aggregate Revolving Credit Commitments have been reduced to
an amount equal to the Swingline Commitment.


 


(e)           Any Revolving Credit
Loans prepaid pursuant to Section 2.11(a) or (b) may be
reborrowed.  Any Term Loans prepaid may
not be reborrowed (except as provided in Section 2.1(d)).  In the event the Borrower elects to cancel
all or any portion of the Revolving Credit Commitments and the Swingline
Commitment pursuant to Section 2.11(d) hereof, such amounts may not
be borrowed or reborrowed.


 


Section 2.12. Mandatory
Prepayments; Cure.


 


(a)           Subject to the Priority of Payments, 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 and Revolving Credit Commitment reductions.


 


44

















 


(b)           Subject to the Priority of Payments, 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 2.11 shall not apply to any such prepayment
but Section 2.16 shall apply thereto).


 


(c)           The Administrative Agent shall calculate the Dollar Equivalent Amount
of any Alternate Currency Loan at the time of each Borrowing thereof and on the
last Business Day of each calendar month. 
If at any such time the Dollar Equivalent Amount of the sum of all
Multicurrency Revolving/Term Loans, Revolving Credit Loans, Swingline Loans and
Letter of Credit Usage, as determined by the Administrative Agent in accordance
with the terms of this Agreement, in the aggregate, exceeds 103% of the sum of
the Adjusted Funded Amount and the Revolving Facility Amount, the Borrower,
within three (3) Business Days after notice thereof from the
Administrative Agent, shall repay all or a portion of the Revolving Credit
Loans or take such other actions, otherwise in accordance with the applicable
terms of this Agreement, in such amount so that, following the making of such
payment or action, the Dollar Equivalent Amount outstanding of such Loans and
Letter of Credit Usage does not exceed the sum of the Adjusted Funded Amount
and the Revolving Facility Amount.


 


(d)           Amounts to be applied in connection with prepayments of Loans and
Revolving Credit Commitment reductions made pursuant to clause (a) and (b) above
shall be applied, (1) first, to the prepayment of the Term Loans
and (2) second, to prepay Revolving Credit Loans and
Swingline Loans (and, solely in the case of mandatory prepayments made pursuant
to clause (a) above, to reduce permanently the Revolving Credit
Commitments).  Any such permanent reduction of the Revolving
Credit Commitments shall be accompanied by prepayment of the Revolving Credit
Loans and/or Swingline Loans to the extent, if any, that the aggregate amount
of the Revolving Credit Loans outstanding, the Letter of Credit Usage and the
Swingline Loans outstanding exceeds the amount of the Banks’ Revolving Credit
Commitments as so reduced; provided that if the aggregate principal
amount of Revolving Credit Loans and Swingline Loans then outstanding is less
than the amount of such excess (because Letter of Credit Usage constitutes a
portion thereof), the Borrower shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit Letter of
Credit Collateral in the Letter of Credit Collateral Account, with interest
accruing thereon in accordance with the provisions of Section 6.4.  Each
prepayment of the Loans under this Section 2.12 (except in the case of
Revolving Credit Loans that are Base Rate Loans and Swingline Loans) shall be
accompanied by accrued interest thereon to the date of such prepayment on the
amount prepaid.


 


(e)           Each mandatory prepayment and Commitment reduction pursuant to clause
(a), (b) or (c) above shall be applied ratably according to the
respective outstanding principal amounts of the Loans being prepaid or
Revolving Credit Commitments, as applicable, then held by the Banks.  The application of any mandatory prepayment
pursuant to clause (a) or (b) above, if made in Dollars, shall be
made, first, to Base Rate Loans and, second, to Euro-Currency
Loans.  Each prepayment of the Loans
under this Section 2.12 shall be accompanied by accrued and unpaid
interest thereon to the date of such prepayment on the amount so prepaid.


 


45
















 


Section 2.13. 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 2.13, 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
and, in the case of any prepayment of Revolving Credit Loans pursuant to this Section 2.13,
a commensurate amount of the applicable Bank’s Revolving Credit Commitment
shall be concurrently cancelled and thereafter, for purposes of determining
borrowing amounts, obligations in respect of Letters of Credit and Swingline
Loans, repayment or prepayment of principal, obligations under Section 7.6
and similar items (but not payments of interest), such prepayment shall be
treated to the extent applicable as though it were the equivalent of the
purchase of a “last-out” participation in such Revolving Credit Commitment, (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 to be subject to such
prepayment, 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.  Any prepayment under this Section 2.13
shall be subject to the consent of the Administrative Agent, which shall be
granted unless administrative responsibilities resulting from such prepayment
would be unduly burdensome, as determined by the Administrative Agent in its
sole discretion.


 


Section 2.14. General
Provisions as to Payments.


 


(a)           Notwithstanding anything to the contrary herein, all payments made by
the Borrower pursuant to Section 2.11 and Section 2.12 are subject to
the Priority of Payments.


 


(b)           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 or local time
in the principal financial center of the Alternate Currency in question, as
applicable) on the date when due, of Federal funds or the applicable Alternate
Currency immediately available in New York, New York, or, in the case of any
Alternate Currency, the principal financial center of the Alternate Currency in
question, 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) 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 or local time in the principal financial
center of the Alternate Currency in question, as applicable) 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 


 


46

















 


Bank, at the Federal Funds Rate with respect
to Dollar denominated Loans and at the Administrative Agent’s cost of funds for
the applicable Alternate Currency with respect to Alternate Currency
Loans.  Whenever any payment of principal
of, or interest on the Base Rate Loans or Swingline 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.  All repayments or prepayments of any
Loans, and all interest paid on any Loan (whether regularly scheduled, upon
repayment or prepayment or otherwise), hereunder shall be made in the currency
in which such Loans are denominated, and all other payments under this
Agreement shall, unless otherwise specified herein, be made in Dollars.  Any payment or prepayment of principal made
in respect of Term Loans (other than any prepayment of the Multicurrency
Revolving/Term Loans (x) during the Multicurrency Revolving Loan Period to
the extent a corresponding borrowing is contemplated to be made under the
Multicurrency Revolving/Term Commitments or (y) pursuant to Section 2.12(c))
shall be applied on a ratable
basis among the Term Loans in proportion to the respective Dollar Equivalent
Amount of Term Loans held each Lender; and, if necessary to make any such
payments or prepayments ratably to all Term Loan Lenders in the applicable
currencies, the Borrower shall, or shall instruct the Administrative Agent to,
enter into foreign exchange transactions and the Borrower shall pay any
premium and costs payable in connection with the purchase of the relevant
currency.


 


(c)           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 2.15. Priority
of Payments.  (a) Any payments
made by the Borrower pursuant to Sections 2.11 and 2.12 shall be applied to and
among the First Priority Credit Agreement, the 2011 Second Priority Credit
Agreement and this Agreement as set forth in clauses (b) and (c) below
(the provisions of this Section 2.15 are collectively referred to as the “Priority
of Payments”).


 


(b)           Any voluntary
prepayments made pursuant to Section 2.11 or the equivalent provisions
under the First Priority Credit Agreement or the 2011 Second Priority Credit
Agreement shall be applied (1) first, to prepay the loans
outstanding under the First Priority Credit Agreement or to reduce the
commitments thereunder, (2) second, to prepay the term loans
outstanding under the 2011 Second Priority Credit Agreement, and (3) third,
to 


 


47

















 


prepay the Term Loans
outstanding under this Agreement; provided, however, that if (a) the
loans and other obligations outstanding under the First Priority Credit
Agreement have been paid in full and the commitments thereunder have been
terminated and (b)(i) a Default or Event of Default has occurred and is
continuing or (ii) the Fixed Charge Coverage Ratio is less than 1.25:1.00
as of the date of determination, then any such voluntary prepayment shall be
applied on a pro  rata basis as between the term loans outstanding
under the 2011 Second Priority Credit Agreement and the Term Loans outstanding
under this Agreement; provided  further, that, notwithstanding the
foregoing, the Borrower shall at any time other than when a Default or Event of
Default has occurred and is continuing, be permitted to prepay or repay
revolving credit loans, swingline loans and letter of credit reimbursement
obligations outstanding under the Second Priority Bank Facilities and, upon any
such prepayment, there shall be no corresponding reduction of the commitments
thereunder.


 


(c)           Any mandatory
prepayments made pursuant to Section 2.12(a) or (b) or the
equivalent provisions under the First Priority Credit Agreement or the 2011
Second Priority Credit Agreement shall be applied (1) first, to
prepay loans outstanding under the First Priority Credit Agreement (provided
that if the amount of any such mandatory prepayment is greater than the
aggregate principal amount of loans then outstanding under the First Priority
Credit Agreement, then the excess amount of such prepayment (after giving
effect to the prepayment of all outstanding loans under the First Priority
Credit Agreement) shall instead reduce the unused commitments thereunder and
such excess amount (in an amount not to exceed the aggregate amount of unused
commitments thereunder) shall be placed in escrow at an account maintained at
the Administrative Agent), (2) second, to prepay the term loans
outstanding under the 2011 Second Priority Credit Agreement, (3) third,
to prepay the Term Loans outstanding under this Agreement, (4) fourth,
to prepay revolving credit loans, swingline loans and letter of credit
reimbursement obligations (and, solely in the case of mandatory prepayments
made pursuant to Section 2.12(a), to reduce permanently the revolving
credit commitments) outstanding under the 2011 Second Priority Credit
Agreement, and (5) fifth, to prepay Revolving Credit Loans,
Swingline Loans and Letter of Credit reimbursement obligations (and, solely in
the case of mandatory prepayments made pursuant to Section 2.12(a), to
reduce permanently the Revolving Credit Commitments) outstanding under this
Agreement.


 


Section 2.16. 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 2.5(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 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 


 


48

















 


for and calculation of such loss or expense and shall be conclusive in
the absence of demonstrable error.


 


Section 2.17. Computation
of Interest and Fees.  With respect
to Base Rate Loans, the rate of interest on which is calculated based on the
Prime Rate or for Euro-Currency Loans denominated in British Pounds Sterling
hereunder, interest thereon shall be computed on the basis of a year of 365
days (or, in the case of interest based on the Prime Rate only, 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 2.18. 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 2.19. Letters
of Credit.


 


(a)           [Reserved].


 


(b)           Subject to the terms contained in this Agreement and the other Loan
Documents, upon the receipt of a notice in accordance with Section 2.3(b) requesting
the issuance of a Letter of Credit, the Fronting Bank shall issue a Letter of
Credit or Letters of Credit in such form as is reasonably acceptable to the
Borrower (subject to the provisions of Section 2.3(b)) in Dollars and in
an amount or amounts equal to the amount or amounts requested by the Borrower.


 


(c)           Each Letter of Credit shall be issued in the minimum amount of $100,000
or such lesser amount as may be agreed to by the Fronting Bank.


 


(d)           The Letter of Credit Usage shall be no more than $75,000,000.


 


(e)           Without the consent of the Administrative Agent, there shall be no more
than ten (10) Letters of Credit outstanding at any one time.


 


(f)            In the event of any request for a drawing
under any Letter of Credit by the beneficiary thereunder, the Fronting Bank
shall notify the Borrower and the Administrative Agent (and the Administrative
Agent shall notify each Bank thereof) on the same Business Day as such request
for drawing, and, except as provided in this subsection (f), the Borrower shall
reimburse the Fronting Bank, in immediately available funds, on the same day on
which such drawing is honored in an amount equal to such drawing.
Notwithstanding anything contained herein to the contrary, however, unless the
Borrower shall have notified the Administrative Agent and the Fronting Bank
prior to 1:00 p.m. (New York City time) on the Business Day immediately
preceding the date of such drawing that the Borrower intends to reimburse the
Fronting Bank for the amount of such drawing with funds other than the proceeds
of the Loans, the Borrower shall be deemed to have timely given a Notice of
Borrowing pursuant to Section 2.3


 


49

















 


to the Administrative Agent, requesting a
Base Rate Borrowing of Revolving Credit Loans on the date on which such drawing
is honored and in an amount equal to the such drawing. Each Bank shall, in accordance
with Section 2.5(b), make available its Pro Rata Share of such Borrowing
to the Administrative Agent, the proceeds of which shall be applied directly by
the Administrative Agent to reimburse the Fronting Bank for the amount equal to
the Dollar Equivalent Amount of such draw. 
In the event that any Bank fails to make available to the Fronting Bank
the amount of such Bank’s participation on the date of a drawing, the Fronting
Bank shall be entitled to recover such amount on demand from such Bank together
with interest at the Federal Funds Rate commencing on the date such drawing is
honored.


 


(g)           If, at the time a beneficiary under any Letter of Credit requests a
drawing thereunder, an Event of Default as described in Section 6.1(f) or
Section 6.1(g) shall have occurred and is continuing, then on the
date on which the Fronting Bank shall have honored such drawing, the Borrower
shall have an unreimbursed obligation (the “Unreimbursed Obligation”) to
the Fronting Bank in an amount equal to the amount of such drawing, which
amount shall bear interest  at the annual
rate of the sum of the Base Rate and the Applicable Margin for Base Rate Loans
plus two percent (2%). Each Bank shall purchase an undivided participating interest
in such drawing in an amount equal to its Pro Rata Share of the Revolving
Credit Commitments, and upon receipt thereof the Fronting Bank shall deliver to
such Bank an Unreimbursed Obligation participation certificate dated the date
of the Fronting Bank’s receipt of such funds and in the amount of such Bank’s
Pro Rata Share.


 


(h)           If, after the date hereof, any change in any law or regulation or in
the interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof shall either (i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against letters of credit issued by, or assets held by, or deposits in or for
the account of, or participations in any letter of credit, upon any Bank
(including the Fronting Bank) or (ii) impose on any Bank any other
condition regarding this Agreement or such Bank (including the Fronting Bank)
as it pertains to the Letters of Credit or any participation therein and the
result of any event referred to in the preceding clause (i) or (ii) shall
be to increase, by an amount deemed by the Fronting Bank or such Bank to be
material, the cost to the Fronting Bank or any Bank of issuing or maintaining
any Letter of Credit or participating therein, then the Borrower shall pay to
the Fronting Bank or such Bank, within 15 days after written demand by such
Bank (with a copy to the Administrative Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, such additional amounts as shall be required to
compensate the Fronting Bank or such Bank for such increased costs or reduction
in amounts received or receivable hereunder. 
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 2.19(h) 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.  If such Bank shall fail to notify
Borrower of any such event within 90 days following the end of the month during
which such event occurred, then 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 Borrower of the occurrence of such event.  A certificate 


 


50

















 


of any Bank claiming compensation under this Section 2.19(h) 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.


 


(i)            The Borrower hereby agrees to protect,
indemnify, pay and save the Fronting Bank harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable and documented attorneys’ fees and disbursements) which
the Fronting Bank may incur or be subject to as a result of (i) the
issuance of the Letters of Credit, other than to the extent of the bad faith,
gross negligence or willful misconduct of the Fronting Bank or (ii) the
failure of the Fronting Bank to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority
(collectively, “Governmental Acts”), other than to the extent of the bad
faith, gross negligence or willful misconduct of the Fronting Bank. As between
the Borrower and the Fronting Bank, the Borrower assumes all risks of the acts
and omissions of any beneficiary with respect to its use, or misuses of, the
Letters of Credit issued by the Fronting Bank. 
In furtherance and not in limitation of the foregoing, the Fronting Bank
shall not be responsible (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of such Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
insufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit, other than as a result of
the bad faith, gross negligence or willful misconduct of the Fronting Bank; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
message, by mail, cable, telegraph, facsimile transmission, or otherwise; (v) for
errors in interpretation of any technical terms; (vi) for any loss or
delay in the transmission or otherwise of any documents required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) for
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of such Letter of Credit; and (viii) for any consequence arising
from causes beyond the control of the Fronting Bank, including any Government
Acts, in each case other than to the extent of the bad faith, gross negligence
or willful misconduct of the Fronting Bank. None of the above shall affect,
impair or prevent the vesting of the Fronting Bank’s rights and powers
hereunder.  In furtherance and extension
and not in limitation of the specific provisions hereinabove set forth, any
action taken or omitted by the Fronting Bank under or in connection with the Letters
of Credit issued by it or the related certificates, if taken or omitted in good
faith, shall not put the Fronting Bank under any resulting liability to the
Borrower; provided that, notwithstanding anything in the foregoing to the
contrary, the Fronting Bank will be liable to the Borrower for any damages
suffered by the Borrower or its Subsidiaries as a result of the Fronting Bank’s
grossly negligent or willful failure to pay under any Letter of Credit after
the presentation to it of a sight draft and certificates strictly in compliance
with the terms and conditions of such Letter of Credit.


 


(j)            If the Fronting Bank or the Administrative
Agent is required at any time, pursuant to any bankruptcy, insolvency,
liquidation or reorganization law or otherwise, to return 


 


51

















 


to the Borrower any reimbursement by the
Borrower of any drawing under any Letter of Credit, each Bank shall pay to the
Fronting Bank or the Administrative Agent, as the case may be, its Pro Rata
Share of such payment, but without interest thereon unless the Fronting Bank or
the Administrative Agent is required to pay interest on such amounts to the
person recovering such payment, in which case with interest thereon, computed
at the same rate, and on the same basis, as the interest that the Fronting Bank
or the Administrative Agent is required to pay.


 


Section 2.20. Letter of
Credit Usage Absolute.  The
obligations of the Borrower under this Agreement in respect of any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement (as the same may be amended from
time to time) and any Letter of Credit Documents (as hereinafter defined) under
all circumstances, including, without limitation, to the extent permitted by
law, the following circumstances:


 


(a)           any lack of validity or enforceability of any Letter of Credit or any
other agreement or instrument relating thereto (collectively, the “Letter of
Credit Documents”) or any Loan Document;


 


(b)           any change in the time, manner or place of payment of, or in any other
term of, all or any of the obligations of the Borrower in respect of the
Letters of Credit or any other amendment or waiver of or any consent by the
Borrower to departure from all or any of the Letter of Credit Documents or any
Loan Document; provided, that the Fronting Bank shall not consent to any
such change or amendment unless previously consented to in writing by the
Borrower;


 


(c)           any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of the Borrower in respect of the Letters of
Credit;


 


(d)           the existence of any claim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Fronting Bank or any
Bank (other than a defense based on the bad faith, gross negligence or willful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any
other Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;


 


(e)           any draft or any other document presented under or in connection with
any Letter of Credit or other Loan Document proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; provided, that payment by the Fronting Bank
under such Letter of Credit against presentation of such draft or document
shall not have been the result of the bad faith, gross negligence or willful
misconduct of the Fronting Bank;


 


(f)            payment by the Fronting Bank against
presentation of a draft or certificate that does not strictly comply with the
terms of the Letter of Credit; provided, that such payment 


 


52

















 


shall not have been the result of the bad
faith, gross negligence or willful misconduct of the Fronting Bank; and


 


(g)           any other circumstance or happening whatsoever other than the payment
in full of all obligations hereunder in respect of any Letter of Credit or any
agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrower; provided, that such other
circumstance or happening shall not have been the result of bad faith, gross
negligence or willful misconduct of the Fronting Bank.


 


Section 2.21. Letters
of Credit Maturing after the Maturity Date.


 


(a)           Notwithstanding anything contained herein to the contrary, if any
Letters of Credit, by their terms, shall mature after the Maturity Date (as the
same may be extended), then, on and after the Maturity Date, the provisions of
this Agreement shall remain in full force and effect with respect to such
Letters of Credit, and the Borrower shall comply with the provisions of Section
2.21(b).  No Letter of Credit shall
mature on a date that is more than twelve (12) months after the Maturity Date.


 


(b)           If, at any time and
from time to time, any Letter of Credit shall have been issued hereunder and
the same shall expire on a date after the Maturity Date, then, on the issuance
thereof, the Borrower shall pay to the Administrative Agent, on behalf of the
Banks, in same day funds at the Administrative Agent’s office designated in
such demand, for deposit in the Letter of Credit Collateral Account, Letter of
Credit Collateral in an amount equal to the maximum amount available to be
drawn under such Letter of Credit as of such date of determination; provided,
however, that the foregoing shall not apply to any “evergreen” Letter of Credit
unless (i) its initial expiration date is after the Maturity Date or (ii) such
Letter of Credit is renewed and, as a result thereof, the next expiry date or
the following renewal date is scheduled on a date after the Maturity Date; and,
provided, further, however, that the maximum amount available to
be drawn under any Letter of Credit cash collateralized as required by this
sentence shall be disregarded for purposes of determining compliance with the
Coverage Ratio.  Interest shall accrue on
the Letter of Credit Collateral Account in accordance with the provisions of Section 6.4.


 


Section 2.22. Payments. 
If any Bank shall fail to make any payment required to be made by it
pursuant to Section 2.4(b)(iii), 2.4(b)(iv), 2.5(d), 2.19(f), 2.19(g) or
7.6, then the Administrative Agent may, in its sole discretion (notwithstanding
any contrary provision of this Agreement), apply any amounts thereafter
received by the Administrative Agent, the Swingline Lender or the Fronting Bank
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 the 2011 Second Priority Credit
Agreement or the First Priority 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 the 2011 Second
Priority Credit Agreement or the First Priority Credit Agreement (or, in the
event the institution serving as Administrative Agent hereunder is not, at such
time, the same institution serving as 


 


53

















 


administrative agent under either the 2011 Second Priority Credit
Agreement or the First Priority Credit Agreement, turn over such amounts to the
applicable administrative agent under the 2011 Second Priority Credit Agreement
or the First Priority Credit Agreement to be applied for such purposes).


 


Section 2.23. Collateral. 
(a)  The Obligations shall be secured by a perfected second
priority security interest in the Collateral, subject only to the first
priority Lien granted pursuant to the Security Agreement for the benefit of the
First Priority Secured Parties.  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
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 2.23,
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 2.23,
(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.


 


54
















 


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
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, in consultation with the Consulting Banks,  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 2.24. 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 


 


55

















 


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 2.24 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 2.24 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 2.24,
neither the Borrower nor any Grantor shall be required to deliver environmental
reports, third-party reports, appraisals, surveys, title insurance 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 2.6;


 


(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 


 


56

















 


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;


 


(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 2.3,
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;


 


57

















 


(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, 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 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 First Priority Credit
Agreement and the 2011 Second
Priority Credit Agreement as of 


 


58

















 


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 First Priority Credit
Agreement and the 2011 Second
Priority Credit Agreement; and


 


(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 or to participate in any
Letter of Credit issued by the Fronting Bank and the obligation of the Fronting
Bank to issue a Letter of Credit and the obligation of the Swingline Lender to
make a Swingline Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:


 


(a)           receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.3 or Section 2.4(b)(i) or a request to
cause a Fronting Bank to issue a Letter of Credit pursuant to Section 2.19;


 


(b)           in the case of a Revolving Credit Borrowing, Swingline Borrowing or
Letter of Credit issuance, immediately after giving effect to such Revolving
Credit Borrowing, Swingline Borrowing or Letter of Credit issuance, the
aggregate outstanding principal amount of the sum of the Revolving Credit
Loans, Swingline Loans and the Letter of Credit Usage will not exceed the
aggregate amount of the Revolving Credit Commitments;


 


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


 


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


 


(e)           on a pro forma basis, after giving effect to the making of such Loans
or the issuance of such Letter of Credit and any substantially contemporaneous
addition of any new Collateral with respect to which the Collateral Trustee
shall have been granted a second priority security interest for the benefit of
the Agents and the Banks (subject only to the first priority Lien 


 


59

















 


granted pursuant to the
Security Agreement for the benefit of the First Priority Secured Parties), the Borrower
shall be in compliance with the applicable Coverage Test; and


 


(f)            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 or issuance both
before and after giving effect to the making of such Loans or issuance;
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;


 


provided
that if the Borrower makes a prepayment with respect to any Alternate Currency
Revolving Credit Loans, the Borrower shall be permitted to borrow a Revolving
Credit Loan in Dollars substantially concurrently with such payment in an
amount less than or equal to the Dollar Equivalent Amount of such Alternate
Currency Revolving Credit Loan without being required to (x) satisfy the
foregoing conditions (other than clause (a) above) or (y) comply with
the minimum borrowing amounts otherwise required hereunder.


 


Each Borrowing hereunder or the
issuance of a Letter of Credit 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 (c), (d), (e) and (f) of this Section 3.2.
In the event that any representation or warranty (as set forth in clause (f))
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 or issuance of Letter of Credit shall be
permitted if such Borrowing or issuance of a Letter of Credit would cause the
Borrower to fail to be in compliance with any of the covenants contained in
this Agreement or in any other Loan Document.


 


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 and/or issue or participate in Letters of Credit, the Borrower
makes the following representations and warranties as of the Closing Date and,
in accordance with Section 3.2(f) hereof, as of each Borrowing or
issuance of a Letter of Credit.  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 


 


60

















 


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 2.24) 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 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 


 


61

















 


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 2011
Second Priority Credit Agreement and the First Priority Credit Agreement, 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 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 


 


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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 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.


 


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Section 4.10. Solvency. 
On the Closing Date and after giving effect to the transactions
contemplated by the Loan Documents, the 2011 Second Priority Credit Agreement
and the First Priority Credit Agreement 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.


 


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


 


64

















 


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, 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,


 


65

















 


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 2011
Second Priority Credit Agreement and the First Priority Credit Agreement, in
each case 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 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 second priority Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the


 


66

















 


proceeds thereof, as security
for the Second 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 Liens permitted by Section 5.15(a)(ii) and 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 2.24, 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;


 


(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


 


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(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;


 


(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,


 


68

















 


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;


 


(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;


 


69

















 


(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, 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.


 


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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.


 


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


 


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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 2.12. 
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 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.


 


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(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 (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


 


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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 Agreement and the equivalent provision under the guarantee of the
2011 Second Priority Credit Agreement (or, in the case of Secured Exchange
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.


 


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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 (i) the First Priority Credit Agreement and (ii) the
2011 Second Priority Credit Agreement, in each case, 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 1.1C 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) 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.


 


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provided that (x) the foregoing restrictions in
this Section 5.15 shall not apply at any time and for so long as (A) the
loans and other obligations under the First Priority Credit Agreement have been
repaid in full and the commitments thereunder have been terminated and (B) the
Coverage Ratio is not less than (1) 1.50 to 1.00, or (2) if no
Secured Exchange Notes have been issued and the Exchange Option Termination has
occurred, 1.35 to 1.00 and (y) no Default or Event of Default shall be
deemed to occur under or as a consequence of this Section 5.15 solely as a
result of the existence of a Lien, not otherwise prohibited hereunder, created
incurred or assumed by the Borrower or any Subsidiary at a time when the
conditions set forth in clause (x) of this proviso had been satisfied (it
being understood, however, that any subsequent incurrence or assumption of a
Lien at a time when, or after giving effect to which, the Borrower shall not be
in compliance with this clause (x)(B) of this proviso, shall constitute an
Event of Default).  Notwithstanding
anything to the contrary herein, the security interest in the Collateral
granted pursuant to the Security Agreement shall be free and clear of any Liens
(other than Liens created under the Security Agreement and Permitted Liens
described in clause (a), (b) or (f) of the definition thereof set
forth herein).


 


Section 5.16. Prepayments
of Secured Exchange Notes, Other Notes, 2011 Second Priority Credit Agreement
and Existing Credit Agreements; 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
either Existing Credit Agreement, or any refinancing thereof.


 


(c)           Except as set forth in the Priority of Payments, 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 the 2011 Second Priority Credit
Agreement, 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 2011 Second Priority
Credit Agreement so long as (x) no Default or Event of Default has
occurred and (y) there shall be no corresponding reduction of the
commitments thereunder.


 


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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.


 


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


 


77

















 


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 Letter of Credit reimbursement obligation, or (ii) the
Borrower shall fail to pay when due interest on any Loan or Letter of Credit
reimbursement obligation 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 2.12, Section 2.24, 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,
5.21 or 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


 


(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


 


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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


 


(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


 


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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
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


 


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(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 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,


 


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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. Actions in
Respect of Letters of Credit.  (a) If,
at any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Acceleration Event in respect of this Agreement shall have
occurred and be continuing, then, upon the occurrence and during the
continuation of any Acceleration Event in respect of this Agreement, the
Borrower shall pay to the Administrative Agent, on behalf of the Banks, in same
day funds at the Administrative Agent’s office designated in such demand, for
deposit in a special cash collateral account (the “Letter of Credit
Collateral Account”) to be maintained in the name of the Administrative
Agent (on behalf of the Banks) and under its sole dominion and control at such
place as shall be designated by the Administrative Agent, an amount equal to
the amount of the Letter of Credit Usage under the Letters of Credit (less any
amounts then held in the Collateral Account under the Collateral Trust
Agreement to secure obligations in respect of the Letters of Credit pursuant to
Section 3.5 of the Collateral Trust Agreement).  Interest shall accrue on the Letter of Credit
Collateral Account at a rate equal to the rate on overnight funds.


 


(b)           The Borrower hereby pledges, assigns and grants to the
Administrative Agent, as administrative agent for its benefit and the ratable
benefit of the Banks a lien on and a security interest in, the following
collateral (the “Letter of Credit Collateral”):


 


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(i)                    the Letter
of Credit Collateral Account, all cash deposited therein and all certificates
and instruments, if any, from time to time representing or evidencing the
Letter of Credit Collateral Account;


 


(ii)                   all notes,
certificates of deposit and other instruments from time to time hereafter
delivered to or otherwise possessed by the Administrative Agent for or on
behalf of the Borrower in substitution for or in respect of any or all of the
then existing Letter of Credit Collateral;


 


(iii)                  all
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing Letter of Credit Collateral; and


 


(iv)                  to the extent
not covered by the above clauses, all proceeds of any or all of the foregoing
Letter of Credit Collateral.


 


The lien and security interest
granted hereby secures the payment of all Obligations of the Borrower now or
hereafter existing hereunder and under any other Loan Document.


 


(c)           The Borrower hereby authorizes the Administrative Agent
for the ratable benefit of the Banks to apply, from time to time after funds
are deposited in the Letter of Credit Collateral Account and for so long as an
Acceleration Event has occurred and in continuing, funds then held in the
Letter of Credit Collateral Account to the payment of any amounts, in such
order as the Administrative Agent may elect, as shall have become due and
payable by the Borrower to the Banks in respect of the Letters of Credit.


 


(d)          Neither the Borrower nor any Person claiming or acting on
behalf of or through the Borrower shall have any right to withdraw any of the
funds held in the Letter of Credit Collateral Account, except as provided in Section 6.4(h) hereof.


 


(e)           The Borrower agrees that it will not (i) sell or
otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create
or permit to exist any lien, security interest or other charge or encumbrance
upon or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 6.4.


 


(f)           If any Acceleration Event shall have occurred and be
continuing:


 


(i)                    The
Administrative Agent may, in its sole discretion, without notice to the Borrower
except as required by law and at any time from time to time, charge, set off or
otherwise apply all or any part of first, (x) amounts previously drawn on
any Letter of Credit that have not been reimbursed by the Borrower and (y) any
Letter of Credit Usage described in clause (ii) of the definition thereof
that are then due and payable and second, any other unpaid Obligations then due
and payable against the Letter of Credit Collateral Account or any part
thereof, in such order as the Administrative Agent shall elect. The rights of
the Administrative Agent under this Section 6.4 are in addition to any
rights and remedies which any Bank may have.


 


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(ii)                   The
Administrative Agent may also exercise, in its sole discretion, in respect of
the Letter of Credit Collateral Account, in addition to the other rights and
remedies provided herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the Uniform Commercial Code in
effect in the State of New York at that time.


 


(g)          The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of Credit
Collateral if the Letter of Credit Collateral is accorded treatment substantially
equal to that which the Administrative Agent accords its own property, it being
understood that, assuming such treatment, the Administrative Agent shall not
have any responsibility or liability with respect thereto.


 


(h)          Any surplus of the funds held in the Letter of Credit
Collateral Account and remaining after payment in full of all of the
Obligations of the Borrower hereunder and under any other Loan Document after
the Maturity Date shall be paid promptly to the Borrower or to whomsoever may be
lawfully entitled to receive such surplus.


 


Section 6.5. 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 and Letter of Credit reimbursement obligations
(giving effect to any participations granted therein pursuant to Section 2.4,
Section 2.19 and 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 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.


 


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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 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 undrawn 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


 


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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
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


 


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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 or the
applicable Alternate Currency (in the applicable amounts) 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 or the
applicable Alternate Currency, as the case may be, 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.


 


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


 


87

















 


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 2.11(d).


 


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 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.


 


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(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 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 2.11(d).


 


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


 


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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 or Letter of Credit, (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, the Fronting 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 Letter of Credit or from the execution or delivery of, or otherwise
with respect to, this Agreement, any Letter of Credit 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 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, the Fronting
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, the Fronting Bank or the Administrative Agent (as the case
may be) and, so long as such Bank, the Fronting Bank or 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 


 


90

















 


shall be made within 15 days from the date such Bank, the Fronting 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 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


 


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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 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 2.11(d).


 


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:


 


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(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 no
Borrowing from such Bank would take effect with respect to Alternate Currency
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 2.16 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 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.


 


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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, (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


 


94

















 


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 or
Letter of Credit participated in by it or, in the case of the Fronting Bank,
Letter of Credit issued by it, which is greater than the proportion received by
any other Bank or Letter of Credit issued or participated in by such 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 or Letter of
Credit issued or participated in by such other Bank 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 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 or the Letters of Credit.  The Borrower agrees, to the fullest extent it
may effectively do so under applicable law, that any holder of a participation
in a Commitment, a Loan or a Letter of Credit, 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, 


 


95

















 


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 the Letters of Credit 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 or the Swingline Lender in their respective capacity as
the Administrative Agent or the Swingline Lender, as applicable are affected
thereby, by the Administrative Agent or the Swingline Lender, as applicable);
provided that (A) the 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, the Letters of
Credit 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 Letter of Credit reimbursement obligation 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 Letter of Credit reimbursement
obligation 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) release any Letter of Credit Collateral, (vi) amend,
modify or waive any provision of Section 2.12, (vii) 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 2.13,
(viii) modify the provisions of this Section 9.5 or (ix) 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) amend,
modify or waive any provision of Section 2.15 in any manner adverse to the
Banks, (v) approve the incurrence of any security interests senior to, or
pari passu with, the Liens securing the Obligations hereunder or (vi) 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 manner adverse to the Banks. 
Notwithstanding anything to the contrary contained herein, no 


 


96

















 


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
directly with such Bank in connection with such Bank’s rights and obligations
under this


 


97

















 


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 all of a Bank’s (x) Revolving Credit Commitment and
Multicurrency Revolving/Term Loans (including, during the Multicurrency
Revolving Loan Period, its Multicurrency Revolving/Term Loan Commitment) or (y) Dollar
Term Loans and (ii) after the occurrence and during the continuance of an
Event of Default, in any amount, all or a proportionate part of all (but
subject to the next succeeding sentence), 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, the Fronting Bank’s (if a Person other than the
Administrative Agent and if the assignment involves any Revolving Credit
Commitment) 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 or the Fronting Bank. 
Any assignment involving a Revolving Credit Commitment (or any Revolving
Credit Loans or Letter of Credit Usage) or any Multicurrency Revolving/Term
Loans of any Bank (or, during the Multicurrency Revolving Loan Period, any of
the Multicurrency Revolving/Term Loan Commitment of such Bank) shall be made
jointly in ratable portions of the Revolving Credit Commitment and
Multicurrency Revolving/Term Loans (or, during the Multicurrency Revolving Loan
Period, any of the Multicurrency Revolving/Term Loan Commitment of such Bank)of
such Bank (including ratable portions of its Multicurrency Loans in British
Pounds Sterling, Canadian Dollars, Euros and Dollars).  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


 


98

















 


$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 and the Letter(s) of Credit
participated in by such Bank or, in the case of the Fronting Bank, issued by
it, to a Federal Reserve Bank.  No such
assignment shall release the transferor Bank from its obligations hereunder.


 


(e)           No Assignee, Participant or other transferee of any Bank’s
rights shall be entitled to receive any greater payment under Section 8.3
or 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


 


99

















 


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 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


 


100

















 


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.


 


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, the
Fronting Bank 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, the Fronting Bank and the Banks hereby agrees
that it will keep all Information (as defined below) received by it
confidential except that the Administrative Agent, the Syndication Agents, the
Joint Lead Arrangers, the Joint Bookrunners, the Fronting Bank 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


 


101

















 


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 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. Acknowledgments.  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


 


102

















 


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, the Commitments have been terminated and no Letters of
Credit shall be outstanding, 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.


 


Section 9.18. Delivery
of Promissory Notes.  Each Bank shall
promptly, and in any event not later than three Business Days after the Closing
Date, surrender to the Borrower for subsequent cancellation any promissory
notes issued to such Bank under the Existing 2007 Credit Agreement (or provide
a lost note affidavit in respect thereof).


 


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


 


103

















 


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

  






 


2012 Second 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

  






 


2012 Second 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

  






 


2012 Second Priority Credit Agreement


 

















 




	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Bouton

  
	
   

  	
   

  	
  Name:

  	
  David
  Bouton

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  






 


2012 Second 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

  



 


2012 Second 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

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Bouton

  
	
   

  	
  Name: 

  	
  David Bouton

  
	
   

  	
  Title: 

  	
  Managing Director

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evander S. Jones, Jr.

  
	
   

  	
  Name: 

  	
  Evander S. Jones, Jr.

  
	
   

  	
  Title: 

  	
  Director

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  BARCLAYS BANK PLC, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Manski

  
	
   

  	
  Name: 

  	
  Mark Manski

  
	
   

  	
  Title: 

  	
  Managing Director

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Fabiano

  
	
   

  	
  Name: 

  	
  Michael Fabiano

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  BANK OF MONTREAL, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sue R. Blazis

  
	
   

  	
  Name: 

  	
  Sue R. Blazis

  
	
   

  	
  Title: 

  	
  Vice President

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  NATIONAL AUSTRALIA BANK LTD., as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Pryce

  
	
   

  	
  Name: 

  	
  Michael Pryce

  
	
   

  	
  Title: 

  	
  Director

  



 


2012 Second Priority Agreement


 
















 


	
   

  	
  ROYAL BANK OF CANADA, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dan LePage

  
	
   

  	
  Name: 

  	
  Dan LePage

  
	
   

  	
  Title: 

  	
  Authorized Signatory

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George Sherman

  
	
   

  	
  Name:

  	
  George Sherman

  
	
   

  	
  Title: 

  	
  Director

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  SCOTIABANC INC., as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.F. Todd

  
	
   

  	
  Name:

  	
  J.F. Todd

  
	
   

  	
  Title: 

  	
  Managing Director

  



 


2012 Second 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

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION, as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas L. Nolan

  
	
   

  	
  Name: 

  	
  Thomas L. Nolan

  
	
   

  	
  Title: 

  	
  Vice President

  



 


2012 Second 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

  



 


2012 Second Priority Credit Agreement


 

















 


	
   

  	
  MERRILL LYNCH BANK USA, as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  
	
   

  	
  Name: 

  	
  Louis Alder

  
	
   

  	
  Title: 

  	
  First Vice President

  



 


2012 Second Priority Credit Agreement