exv10w1



 







Exhibit 10.1




SECURED BRIDGE LOAN AGREEMENT



Dated
as of May 24, 2006



     This
SECURED BRIDGE LOAN AGREEMENT is entered into as of May 24, 2006 (the “Agreement
Effective Date”) by and among BIOMED REALTY, L.P., a Maryland limited partnership (“Borrower” or
“Operating Partnership”), KEYBANK NATIONAL ASSOCIATION, a national banking association (“KeyBank”),
and each lender which may hereafter become a party to this Agreement pursuant to Section
11.8 (collectively, together with KeyBank, the “Lenders” and, individually, a “Lender”) and
KEYBANK NATIONAL ASSOCIATION, not individually but as “Administrative Agent.”



RECITALS




     WHEREAS, Borrower has requested that the Lenders provide a secured loan to Borrower; and





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




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



ARTICLE 1



DEFINITIONS AND ACCOUNTING TERMS



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



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



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



     “Adjusted Subject Property NOI” means, as of any date, Adjusted NOI attributable to
the Subject Property, provided that, with respect to the Fiscal Quarter in which the Borrower
acquires its interest in the Subject Property, the Adjusted Subject Property NOI for such Fiscal
Quarter shall be deemed to be increased by the per diem Adjusted NOI for the Subject Property after
acquisition times the number of days in such Fiscal Quarter prior to the date of acquisition.



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



 









 





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



     “Advance” means that portion of any Loan funded by a single Lender.



     “Affiliate” means, as to any Person, any other Person which directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As used in this
definition, “control” (and the correlative terms, “controlled by” and “under common control with”)
shall mean possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise); provided that, in any event, any Person which owns,
directly or indirectly, 10% or more of the securities having ordinary voting power for the election
of directors or other governing body of a corporation, or 10% or more of the partnership or other
ownership interests of any other Person, will be deemed to be an Affiliate of such corporation,
partnership or other Person.



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



     “Alternate Base Rate” means, as of any date of determination, the rate per annum equal
to the higher of (a) the Prime Rate in effect on such date and (b) the Federal Funds Effective Rate
in effect on such date plus one-half of 1% (50 basis points) plus, in either case, the Applicable
Margin.



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



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



     “Applicable Margin” means one and forty hundredths of one percent (1.40%) per annum
with respect to LIBOR Rate Loans and zero with respect to Alternate Base Rate Loans, as the case
may be.



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



     “Bayshore Project” means the Project currently owned by Borrower and located in
Brisbane, California.



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     “Capital Lease Obligations” means all monetary obligations of a Person under any
leasing or similar arrangement which, in accordance with Generally Accepted Accounting Principles,
is classified as a capital lease, other than those obligations so classified solely as a result of
FAS 141.



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



     “Capitalization Rate” means, as of any date with respect to any Project, 8.75%, except
that the Capitalization Rate with respect to the HGS Borrowing Base Property shall be 9.875%.



     “Cash Equivalents” means, as of any date:




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




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




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




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




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



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




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




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



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



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



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



     “Collateral” means all of the property, rights and interests of Owner in the Subject
Property that are subject to the security interests and Liens created by the Security Documents.



     “Commitments” means the commitments of each of the Lenders (as initially specified in
Schedule 1.1 hereto) to make Advances under this Agreement.



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



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



     “Confidential Information” means (i) all of the terms, covenants, conditions or
agreements set forth in this Agreement or any amendments hereto and any related agreements of
whatever nature, (ii) the information and reports provided in compliance with Article 7 of
this Agreement, (iii) any and all information provided, disclosed or otherwise made available to
the Administrative Agent and the Lenders including, without limitation, any and all plans, maps,
studies (including market studies), reports or other data, operating expense information, as-built
plans, specifications, site plans, drawings, notes, analyses, compilations, or other documents or
materials relating to the Projects or their condition or use, whether prepared by Borrower or
others, which use, or reflect, or that are based on, derived from, or are in any way related to the
foregoing, and (iv) any and all other information of Parent, its Subsidiaries or the Investment
Affiliates that the Administrative Agent or any Lender may have access to including, without
limitation, ideas, samples, media, techniques,



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sketches, specifications, designs, plans, forecasts, financial information, technical
information, drawings, works of authorship, models, inventions, know-how, processes, apparatuses,
equipment, algorithms, financial models and databases, software programs, software source
documents, manuals, documents, properties, names of tenants or potential tenants, vendors,
suppliers, distributors and consultants, and formulae related to the current, future, and proposed
products and services of Parent, its Subsidiaries, the Investment Affiliates, tenants or potential
tenants (including, without limitation, information concerning research, experimental work,
development, design details and specifications, engineering, procurement requirements, purchasing,
manufacturing, customer lists, investors, employees, clients, business and contractual
relationships, business forecasts, and sales and marketing plans). Such Confidential Information
may be disclosed or accessible to the Administrative Agent and the Lenders as embodied within
tangible material (such as documents, drawings, pictures, graphics, software, hardware, graphs,
charts, or disks), orally, or visually.




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



     “Consolidated Group Pro Rata Share” means, with respect to any Investment Affiliate,
the percentage of the total equity ownership interests held by the Consolidated Group in the
aggregate in such Investment Affiliate determined by calculating the greater of (i) the percentage
of the issued and outstanding stock, partnership interests or membership interests in such
Investment Affiliate held by the Consolidated Group in the aggregate and (ii) the percentage of the
total book value of such Investment Affiliate that would be received by the Consolidated Group in
the aggregate upon liquidation of such Investment Affiliate, after repayment in full of all
Indebtedness of such Investment Affiliate.



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



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



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



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



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which Borrower or a Wholly-Owned Subsidiary of Borrower is the sole manager and such manager
has the sole power to do the acts described in subclauses (i) through (iv) of
clause (b) above.




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



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



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



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



     “Defaulting Lender” means (a) any Lender that has failed to fund any Advance within
two (2) Banking Days after such funding is required pursuant to this Agreement; or (b) any Lender
that has (i) breached any other material term or condition of this Agreement or (ii) failed to make
any other payment to the Administrative Agent (whether such payment is a reimbursement for costs,
expenses or attorneys’ fees, an indemnity payment, the repayment of erroneously paid funds, a
portion of any set-off to be turned over to the Administrative Agent or otherwise) when such
payment is due and payable under this Agreement or any other Loan Document, if such breach or
failure has not been cured or paid within ten (10) days after notice thereof from the
Administrative Agent to such Lender.



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



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



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



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     “EBITDA” means, with respect to any Person for any Fiscal Quarter, the Net Income of
such Person (from operations and from discontinued operations) for that Fiscal Quarter, before (i)
interest, income taxes, depreciation, amortization and all other non-cash expenses (including
non-cash compensation, to the extent not actually paid as a cash expense) of such Person for that
Fiscal Quarter and (ii) extraordinary gains (and losses) of such Person, in each case as determined
on a consolidated basis in accordance with Generally Accepted Accounting Principles;
provided, that in performing the foregoing calculation of EBITDA with respect to the
Consolidated Group, that portion of EBITDA attributable to the Consolidated Group’s equity
interests in any Investment Affiliates shall be deducted, and the applicable Consolidated Group Pro
Rata Share of EBITDA in each such Investment Affiliate shall be added back into the calculation.



     “Eligible Assignee” means (a) any Lender, (b) any Lender, any Affiliate of any Lender
and any Related Fund of any Lender (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), (c) any commercial bank having a combined capital and
surplus of $5,000,000,000 or more, (d) the central bank of any country which is a member of the
Organization for Economic Cooperation and Development, (e) any savings bank, savings and loan
association or similar financial institution which (A) has a net worth of $500,000,000 or more, (B)
is engaged in the business of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (C) is operationally and
procedurally able to meet the obligations of a Lender hereunder to the same degree as a commercial
bank, and (f) any other financial institution (including a mutual fund or other fund) approved by
the Administrative Agent and, unless an Event of Default shall have occurred and be continuing,
Borrower (such approval not to be unreasonably withheld or delayed) having total assets of
$500,000,000 or more which meets the requirements set forth in subclauses (B) and
(C) of clause (e) above; provided that each Eligible Assignee must either
(a) be organized under the Laws of the United States of America, any State thereof or the District
of Columbia or (b) be organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a political subdivision of
such a country, and (i) act hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.



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



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



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



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



     “Escrow Agent” shall have the meaning provided in Section 8.1(a)(iii).



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



     “Excluded Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project (i) whose lease expired or was terminated during such Fiscal
Quarter or within thirty (30) days after the expiration of such Fiscal Quarter or (ii) which either
defaulted in the payment of any of its lease obligations during such Fiscal Quarter (and such
payment default is continuing after all required notices have been given and all applicable cure
periods provided for in such lease have expired) or was the debtor in a voluntary or involuntary
proceeding under any Debtor Relief Law during such Fiscal Quarter.



     “FAS 141” means Statement No. 141 issued by the Financial Accounting Standards Board.



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



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



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



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



     “Funds From Operations” with respect to any fiscal period shall have the same meaning
determined from time to time by the National Association of Real Estate Investment Trusts to be the
meaning most commonly used by its members.



     “Future Development Land” shall have the meaning set forth in the definition of
Subject Property.



     “Generally Accepted Accounting Principles” or “GAAP” means, as of any date of
determination, accounting principles (a) set forth as generally accepted in then currently
effective



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Opinions of the Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently effective Statements of the
Financial Accounting Standards Board or (c) that are then approved by such other entity as may be
approved by a significant segment of the accounting profession in the United States of America.
The term “consistently applied,” as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those applied at prior dates or for
prior periods.




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



     “Gross Asset Value” means, as of any day, an amount equal to the sum of the following
assets then owned by a member of the Consolidated Group or an Investment Affiliate and valued as
follows: (i) Adjusted NOI attributable to Projects owned by a member of the Consolidated Group (or
the Consolidated Group Pro Rata Share thereof with respect to Projects owned by an Investment
Affiliate) (excluding any such portion of such Adjusted NOI attributable to (a) the HGS Borrowing
Base Property, (b) Projects that were Unstabilized Projects at any time during the Fiscal Quarter
with respect to which Adjusted NOI is determined, (c) Projects acquired after the first day of such
Fiscal Quarter, or (d) Projects disposed of during or after such Fiscal Quarter), divided
by the applicable Capitalization Rate; plus, without duplication, (ii) with respect to each
such excluded Project that was an Unstabilized Project, the greater of (a) the portion of such
Adjusted NOI attributable to such excluded Project (or the Consolidated Group Pro Rata Share
thereof with respect to any such excluded Project owned by an Investment Affiliate),
divided by the applicable Capitalization Rate and (b) the Consolidated Group’s GAAP cost
basis (or the Consolidated Group Pro Rata Share thereof with respect to any such excluded Project
owned by an Investment Affiliate) in such excluded Project; plus (iii) the lesser of (a)
$200,000,000 and (b) the Adjusted NOI attributable to the HGS Borrowing Base Property
divided by the applicable Capitalization Rate; plus (iv) the acquisition cost of
all Projects acquired after the first day of such Fiscal Quarter and on or prior to such date of
determination (or the Consolidated Group Pro Rata Share thereof with respect to any such acquired
Project owned by an Investment Affiliate); plus (iv) the acquisition cost of all raw land
held for development as of such date (or the Consolidated Group Pro Rata Share thereof with respect
to any such land owned by an Investment Affiliate) (provided that the amount contributed to Gross
Asset Value under this clause (v) shall not exceed 10% of the total Gross Asset Value);
plus (vi) cash and Cash Equivalents of the Consolidated Group as of such date of
determination.



     “Guarantee” or “Guaranteed Obligation” means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any other Person or (b)
assurance given by that Person to an obligee of any other Person with respect to the performance of
an obligation by, or the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such obligation or any
collateral security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the solvency or level of
any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever
nature given for the purpose of



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assuring or holding harmless such obligee against loss with respect to any obligation of such
other Person; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation in respect of Indebtedness shall be deemed to be an amount
equal to the stated or determinable amount of the related Indebtedness (unless the Guarantee
Obligation is limited by its terms to a lesser amount, in which case to the extent of such amount)
or, if not stated or determinable, the reasonably anticipated liability in respect thereof as
determined by the Person in good faith pursuant to Generally Accepted Accounting Principles.




     “Guarantors” means collectively, Parent and Owner.



     “Guaranty” means, collectively, that certain Guaranty dated as of the Agreement
Effective Date executed by Parent and that certain IDOT Guaranty dated as of the Agreement
Effective Date executed by the Owner.



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



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



     “Headquarters Property” shall have the meaning set forth in the definition of Subject
Property.



     “HGS Borrowing Base Property” means the Project located at 9911 Belward Campus Drive,
Rockville, Maryland consisting of approximately nine and one-half acres of land improved with a
building containing approximately 289,912 gross square feet of laboratory manufacturing space.



     “HGS Purchase Agreement” means that certain Agreement of Purchase and Sale dated as of
May 2, 2006 between Borrower and Human Genome Sciences, Inc. (“HGS”) with respect to the
purchase by Borrower of 100% of the ownership interests in the Owner and certain other entities.



     “Implied Debt Service Amount” means, as of any date, the aggregate annual amount of
principal and interest that would be needed to fully amortize the then Outstanding Loan Amount by
equal monthly payments of principal and interest over a 30 year period, using an annual interest
rate equal to the greater of (i) the sum of (A) the then-current annual yield on obligations of the
United States of America Treasury maturing approximately 10 years after such date plus (B)
2.00% per annum, or (ii) 6.75% per annum



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



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     “Indebtedness” means, with respect to a Person, at the time of computation thereof,
all of the following (without duplication): (a) all obligations of such Person in respect of money
borrowed; (b) all obligations of such Person, whether or not for money borrowed (i) represented by
notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced
by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts or other similar instruments, upon which interest charges
are customarily paid or that are issued or assumed as full or partial payment for Property or
services rendered; (c) Capital Lease Obligations of such Person; (d) all reimbursement obligations
of such Person under any letters of credit or acceptances (whether or not the same have been
presented for payment); (e) all off-balance sheet obligations of such Person; (f) all obligations
of such Person in respect of any repurchase obligation, takeout commitment or forward equity
commitment, in each case evidenced by a binding agreement (it being understood that the term
“Indebtedness” shall not include trade payables incurred in the ordinary course of business or
obligations of such Person under purchase agreements pertaining to potential acquisition by such
Person of additional real properties (and related assets)); (g) net mark to market exposure of such
Person under any interest rate protection agreement (including, without limitation, any interest
rate swaps, caps, floors, collars and similar agreements) and currency swaps and similar
agreements; (h) all Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person (except for guaranties of customary non-recourse “carve-out” exceptions for
fraud, misapplication of funds, environmental indemnities and other similar exceptions to recourse
liability (but not exceptions relating to bankruptcy, insolvency, receivership or other similar
events)); and (i) all Indebtedness of another Person secured by any Lien on Property owned by such
Person, even though such Person has not assumed or become liable for the payment of such
Indebtedness or other payment obligation. For the avoidance of doubt, Indebtedness shall not
include premiums required by FAS 141 as a result of the assumption of Indebtedness bearing an
interest rate that was above market interest rates at the time of assumption.



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



     “Interest Coverage Ratio” means, as of any date of determination, the ratio of (a)
Adjusted EBITDA to (b) Interest Expense.



     “Interest Expense” means, with respect to the Consolidated Group and measured as of
the last day of the most recent Fiscal Quarter for which financial results have been reported, the
sum of (a) all interest of the Consolidated Group (whether accrued or paid, without duplication)
for such Fiscal Quarter, excluding any non-cash interest expense, but including any capitalized
interest (less capitalized interest not paid to third parties) not funded from the proceeds of a
construction loan, plus (b) the portion of rent paid or payable by the Consolidated Group (without
duplication) for such Fiscal Quarter under Capital Lease Obligations that should be treated as
interest in accordance with Financial Accounting Standards Board Statement No. 13, plus (c) the
Consolidated Group Pro Rata Share of any interest expense of the type described in clause (a) and
clause (b) above of each Investment Affiliate for such Fiscal Quarter.



- 11 -









 





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



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



     “KOP Project” means that certain Project currently owned by a member of the
Consolidated Group (sometimes referred to by the Parties as the “King of Prussia Project”) and
located in Philadelphia, Pennsylvania.



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



     “Lead Arranger” means KeyBanc Capital Markets.



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



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



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



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



- 12 -









 





     “LIBOR Period” means, as to each LIBOR Rate Loan, the period commencing on the date
specified by Borrower pursuant to Section 2.1(d) and ending 1, 2 or 3 months (or, with the
written consent of all of the Lenders, any other period) thereafter, as specified by Borrower in
the applicable Request for Loan; provided that:



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




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



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



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



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



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



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



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



     “Life Sciences Buildings” means office buildings, office/laboratory buildings and
research or manufacturing/warehouse buildings, the major tenants of which are primarily medical,
pharmaceutical, biotech or other life sciences companies, or are otherwise affiliated with the life
sciences industry.



     “Loan” means the initial advance made or to be made by the Lenders to Borrower as
provided in Section 2.1, and thereafter shall mean each Alternate Base Rate Loan and LIBOR
Rate Loan that is a continuation or conversion of such advance as determined pursuant to
Article 2.



     “Loan Commitment” means $150,000,000. The respective Percentages of the Lenders with
respect to the Loan Commitment are set forth in Schedule 1.1.



- 13 -









 





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



     “Loan Parties” means, collectively, as of any date, Borrower and the Guarantors.



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



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



     “Maturity
Date” means August 23, 2006, subject to extension up to
November 23,
2006 upon satisfaction of the conditions set forth in Section 2.5.



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



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



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



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



     “Net Capital Expenditures” means with respect to any Person for any fiscal period, an
amount equal to the sum of the amount of capital expenditures paid in cash by such Person in order
to maintain the general condition and operation of its Projects during such fiscal period,
excluding (i) any non-recurring capital expenditures made to update or enhance building
infrastructure or building systems on such Projects, (ii) expenditures for tenant improvements or
allowances made or given to induce such tenant to lease such Person’s Property and (iii)
expenditures directly recoverable from tenants of such Person’s Property promptly after such
expenditures have been incurred.



- 14 -









 





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



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



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



     “New Tenant” means, with respect to any Income-Producing Project for any Fiscal
Quarter, a tenant of such Project which first took occupancy of its premises at such Project and
commenced paying rent at any time during the period from the second day of such Fiscal Quarter
through and including the thirtieth (30th) day after the end of such Fiscal Quarter.



     “NOI” means, with respect to any Project for any applicable Fiscal Quarter, the sum of
(i) actual rental income for such Fiscal Quarter attributable to Continuing Tenants and New
Tenants; (ii) with respect to any New Tenant, an imputed amount of net rental income for those days
during such Fiscal Quarter during which such New Tenant was not in occupancy and paying rent based
on the per diem net rental income being paid by such New Tenant as of the commencement of its
obligation to pay rent on its lease; (iii) all actual expense reimbursements received from such
tenants for such Fiscal Quarter; and (iv) all actual other income for such Fiscal Quarter
less (A) actual operating expenses for such Fiscal Quarter (excluding from operating
expenses, any allocation of general and administrative expenses related to the operations of the
Consolidated Group and its Investment Affiliates), (B) actual management fees payable with respect
to such Project for such Fiscal Quarter and (C) any actual or imputed rental income for such Fiscal
Quarter attributable to Excluded Tenants, provided, however, that in the case of any such Project
owned by an Investment Affiliate, only the Consolidated Group Pro Rata Share of the foregoing
amount attributable to such Project shall be included in “NOI”.



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



     “Note” means any of the promissory notes made by Borrower to a Lender evidencing Loans
made under that Lender’s Percentage of the Loan Commitment, substantially in the form of
Exhibit C, either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.



     “Obligations” means all present and future obligations of every kind or nature of the
Loan Parties at any time and from time to time owed to the Administrative Agent or the Lenders or
any one or more of them, under any one or more of the Loan Documents, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including
obligations of performance as well as obligations of payment, and including interest that
accrues



- 15 -









 




after the commencement of any proceeding under any Debtor Relief Law by or against any member
of the Consolidated Group.




     “Opinions of Counsel” means the favorable written legal opinions of Latham & Watkins
LLP, counsel to Borrower and Parent, in form and substance reasonably satisfactory to the
Administrative Agent, plus the favorable written legal opinion of Maguire Woods LLP, special
Maryland counsel to Owner, in form and substance reasonably satisfactory to the Administrative
Agent.



     “Outstanding Loan Amount” means, as of any date, the aggregate of all Advances
outstanding on such date.



     “Owner” means BMR-Shady Grove Road HQ LLC (formerly known as Traville LLC), a Maryland
limited liability company.



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



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



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



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



     “Percentage” means, with respect to each Lender, the percentage derived by dividing
that Lender’s Commitment by the aggregate Loan Commitment, which shall initially be as set forth
opposite the name of that Lender on Schedule 1.1, as such percentage may be increased or
decreased pursuant to a Commitments Assignment and Acceptance executed in accordance with
Section 11.8.



     “Permitted Business Activities” means the acquisition, development, renovation,
ownership, leasing, sale and operation of Life Sciences Buildings (including Unstabilized Projects
that will be used as Life Sciences Buildings following completion of development) plus
free-standing parking garages that serve such Life Sciences Buildings, in the case of the 47 Erie
Parking Garage in Cambridge, Massachusetts and any such parking garage that may be acquired as part
of a future acquisition of Life Sciences Buildings, so long as Borrower has obtained the prior
written approval of the Administrative Agent to the inclusion of such garage, such approval not to
be unreasonably withheld, conditioned or delayed.



     “Permitted Liens” is defined in Section 6.14.



- 16 -









 





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



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



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



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



     “Project” means any parcel of real property located in the 48 states that comprise the
continental United States of America or in the District of Columbia which is owned, leased or
operated (in each case in whole or in part) by Borrower, or any of its Subsidiaries or Investment
Affiliates and which is either (i) improved with completed Life Sciences Buildings or (ii) held
for the development of Life Sciences Buildings, or (iii) a free-standing parking garage serving
such Life Sciences Buildings in the case of the 47 Erie Parking Garage in Cambridge, Massachusetts,
and any other parking garages acquired hereafter with the prior approval of the Administrative
Agent, as provided above.



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



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



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



     “Related Facilities” means the Unsecured Credit Agreement and the Secured Term Loan
Agreement.



     “Related Facilities Guarantors” means, collectively, those Wholly-Owned Subsidiaries
of Borrower which now or hereafter are a “Guarantor” under the Related Facilities.



- 17 -









 





     “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.



     “Request for Loan” means a written request for an Advance, either the initial funding
thereof or any conversion or continuation thereof, substantially in the form of Exhibit D,
signed by a Senior Officer of Borrower, and properly completed to provide all information required
to be included therein.



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



     “Requisite Lenders” means as of any date of determination Lenders holding Notes
evidencing in the aggregate 66-2/3% or more of the Outstanding Loan Amount.



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



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



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



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



     “Secured Term Loan Agreement” means that certain Secured Term Loan Agreement dated May
31, 2005 by and among the Borrower, KeyBank and certain other lenders identified therein, as it may
be amended, restated or modified from time to time.



- 18 -









 





     “Security Documents” means that certain Environmental Indemnity Agreement executed by
Borrower and Owner of even date herewith, that certain Indemnity Deed of Trust, Security Agreement,
Assignment of Rents and Fixture Filing executed by Owner of even date herewith, that certain
Indemnity Assignment of Leases and Rents executed by Owner of even date herewith, that certain
Indemnity Agreement executed by Borrower and Owner of even date herewith and any further collateral
assignments to the Administrative Agent for the benefit of the Lenders.



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



     “Special LIBOR Circumstance” means the application or adoption after the Closing Date
of any Law or interpretation, or any change therein or thereof, or any change in the interpretation
or administration thereof by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any Lender or its LIBOR Lending
Office with any request or directive (whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority.



     “Stabilization” means, as of any date with respect to any Project, that such Project
either (i) has been substantially completed one (1) year or more prior to such date or (ii) has, as
of such date, tenants in occupancy of eighty-five percent (85%) or more of the Net Rentable Area
thereof, each of which is either paying rent or is obligated to begin paying rent not later than
ninety (90) days after the commencement date of such tenant’s lease.



     “Subject Property” means (i) 12 acres of land as more fully described on Exhibit
E-1 attached hereto and made a part hereof, and all improvements thereon, including without
limitation 635,058 gross square feet of laboratory and office space (the “Headquarters
Property”), and (ii) 38 acres of land as more fully described on Exhibit E-2 attached
hereto and made a part hereof(the “Future Development Land”).



     “Subject Property DSCR” means, as of any date, the amount determined by dividing (i)
the most recent Adjusted Subject Property NOI by (ii) the then-current Implied Debt Service Amount.



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



- 19 -









 





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



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



     “type”, when used with respect to any Loan or Advance, means the designation of
whether such Loan or Advance is an Alternate Base Rate Loan or Advance, or a LIBOR Rate Loan or
Advance.



     “Unencumbered” means, with respect to any property, that such property (a) is not
subject to any Lien other than Permitted Liens which do not secure Indebtedness, (b) is not subject
to any Negative Pledge and (c) is not held by a Person any of whose direct or indirect equity
interests are subject to a Lien or Negative Pledge.



     “Unsecured Credit Agreement” means that certain Unsecured Credit Agreement dated May
31, 2005 by and among the Borrower, KeyBank and certain other lenders identified therein, as it may
be amended, restated or modified from time to time.



     “Unstabilized Project” means, as of any date, a Project that either is currently under
construction or has been recently completed (as to its initial construction) but has not yet
reached Stabilization. Once a Project has reached Stabilization, whether by passage of time or
leasing and occupancy, it shall not thereafter qualify as an Unstabilized Project.



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



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



     1.3 Accounting Terms. All accounting terms not specifically defined in this Agreement
shall be construed in conformity with, and all financial data required to be submitted by this
Agreement shall be prepared in conformity with, Generally Accepted Accounting Principles applied on
a consistent basis, except as otherwise specifically prescribed herein. In the event that
Generally Accepted Accounting Principles change during the term of this Agreement such that the
covenants contained in Sections 6.5 through 6.13, inclusive, would then be
calculated in a different manner or with different components, (a) Borrower and the Lenders agree
to amend this Agreement in such respects as are necessary to conform those covenants as criteria
for evaluating Borrower’s financial



- 20 -









 




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




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



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



ARTICLE 2



LOANS



     2.1 Loans General.



          (a) Subject to the terms and conditions set forth in this Agreement, on the Closing Date, the
Lenders shall, pro rata according to each Lender’s Percentage, make a single disbursement to
Borrower not to exceed the Loan Commitment, provided that in all events no Default or Event of
Default shall have occurred and be continuing and all conditions to Advances hereunder shall have
been satisfied or waived. Borrower may not reborrow any Advances once repaid.




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




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




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





- 21 -









 







waiver of the applicable conditions set forth in Article 8, all Advances shall be wire
transferred on that date in immediately available funds to the account or accounts designated in
the wiring instructions included in such Request for Loan.




          (e) Unless the Requisite Lenders otherwise consent, each Alternate Base Rate Loan shall be not
less than $1,000,000, each LIBOR Rate Loan shall be not less than $1,000,000 and all Loans shall be
in an integral multiple of $250,000.




          (f) The Advances made by each Lender under the Loan Commitment shall be evidenced by that
Lender’s Note.




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




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



     2.3 LIBOR Rate Loans.



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




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




          (c) Unless the Administrative Agent and the Requisite Lenders otherwise consent, there shall
be no more than two (2) LIBOR Periods in effect at any one time.




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




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




     2.4 Administrative Agent’s Right to Assume Funds Available for Loans. Unless the
Administrative Agent shall have been notified by any Lender no later than 1:00 p.m., Cleveland time
on the Banking Day of the proposed funding by the Administrative Agent of any Loan that





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such Lender does not intend to make available to the Administrative Agent such Lender’s
portion of the total amount of such Loan, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to Borrower a
corresponding amount. If the Administrative Agent has made funds available to Borrower based on
such assumption and such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender plus an administrative fee of $200. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent promptly shall notify Borrower and Borrower shall pay such corresponding
amount (but not the administrative fee) to the Administrative Agent. The Administrative Agent also
shall be entitled to recover from such Lender or Borrower interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available by the
Administrative Agent to Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) from such Lender, the daily Federal Funds
Effective Rate or (ii) from Borrower, at the applicable rate for such Loan. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any
rights which the Administrative Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.




     2.5 Extension of Maturity Date. The Borrower shall have one (1) option to extend the Maturity
Date, for a period of up to three (3) months, without being obligated to pay any extension fee,
upon satisfaction of the following conditions precedent:




     (a) Borrower shall provide Administrative Agent with written notice of the Borrower’s
intent to exercise such extension option not less than thirty (30) days prior to the
Maturity Date specifying the new Maturity Date;




     (b) As of the date of Borrower’s delivery of notice of its intent to exercise this
extension option and as of the then-current Maturity Date, the Subject Property DSCR is not
less than 1.40, or if the Subject Property DSCR is less than 1.40, prior to the first day of
any such extension Borrower shall have made sufficient repayments of the Advances so that
the Outstanding Loan Amount as of the first day of such extension period shall result in a
Subject Property DSCR of not less than 1.40; and




     (c) As of the date of Borrower’s delivery of notice of its intent to exercise this
extension option, and as of the then-current Maturity Date, no Default or Event of Default
shall have occurred and be continuing and Borrower shall so certify in writing.



ARTICLE 3



PAYMENTS AND FEES



     3.1 Principal and Interest.



          (a) Interest shall be payable on the outstanding daily unpaid principal amount of each Advance
from the date thereof until payment in full is made and shall accrue and be payable at



- 23 -









 




the rates
set forth or provided for herein before and after Default, before and after maturity, before and
after judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law, with interest on overdue interest at the Default Rate in each case to the fullest extent
permitted by applicable Laws. Interest on LIBOR Rate Loans shall be computed on a 360 day year,
and actual days elapsed. Interest on Alternate Base Rate Loans shall be computed on a 365 or 366
day year, as applicable, and actual days elapsed.




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




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




          (d) The Notes may, at any time and from time to time, voluntarily be paid or prepaid in whole
or in part without premium or penalty, except that with respect to any voluntary prepayment under
this Section, (i) any partial prepayment shall be not less than $1,000,000, (ii) the Administrative
Agent shall have received written notice of any prepayment by noon, Cleveland time on the date of
prepayment (which must be a Banking Day) in the case of an Alternate Base Rate Loan, and, in the
case of a LIBOR Rate Loan, three (3) Banking Days before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s) being prepaid, (iii) any payment or
prepayment of all or any part of any LIBOR Rate Loan on a day other than the last day of the
applicable LIBOR Period shall be subject to Section 3.5(d) and (iv) upon any partial
prepayment of a LIBOR Rate Loan that reduces it below $1,000,000, the remaining portion thereof
shall automatically convert to an Alternate Base Rate Loan.




     3.2 [Intentionally Omitted].



     3.3 [Intentionally Omitted].



     3.4 Increased Commitment Costs. If any Lender shall determine in good faith that the
introduction after the Closing Date of any applicable Law or guideline regarding capital adequacy,
or any change therein or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or administration thereof, or
compliance by such Lender (or its LIBOR Lending Office) or any corporation controlling such Lender,
with any request, guideline or directive regarding capital adequacy (whether or not having the
force of Law) of any such central bank or other authority not imposed as a result of such Lender’s
or such corporation’s failure to comply with any other Laws, affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation controlling such
Lender and (taking into consideration such Lender’s or such corporation’s policies
with respect to capital adequacy and such Lender’s desired return on capital) determines in
good faith that the amount of such capital is increased, or the rate of return on capital is
reduced, as a



- 24 -









 




consequence of its obligations under this Agreement, then, within ten (10) Banking
Days after demand of such Lender, Borrower shall pay to such Lender, from time to time as specified
in good faith by such Lender, additional amounts sufficient to compensate such Lender in light of
such circumstances, to the extent reasonably allocable to such obligations under this Agreement,
provided that Borrower shall not be obligated to pay any such amount which arose prior to the date
which is ninety (90) days preceding the date of such demand or is attributable to periods prior to
the date which is ninety (90) days preceding the date of such demand. Each Lender’s determination
of such amounts shall be conclusive in the absence of manifest error.




     3.5 LIBOR Costs and Related Matters.



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




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



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



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


and the result of any of the foregoing, as determined in good faith by such Lender, increases the
cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or
in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans or its
obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by
such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance,
any of its Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate Advances, then,
within five (5) Banking Days after demand by such Lender (with a copy to the Administrative




- 25 -









 







Agent),
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had
funded 100% of its LIBOR Rate Advance in the London interbank market), provided, that with respect
to any additional amount arising as a result of the occurrence of an event described in clause (i)
above, Borrower shall not be obligated to pay any such amount which arose prior to the date which
is ninety (90) days preceding the date of such demand or is attributable to periods prior to the
date which is ninety (90) days preceding the date of such demand. A statement of any Lender
claiming compensation under this subsection shall be conclusive in the absence of manifest error.




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




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




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



               (ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined
by the Administrative Agent (i) does not represent the effective pricing



- 26 -









 




to such Lenders for
deposits in Dollars in the London interbank market in the relevant amount for the applicable LIBOR
Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the
applicable LIBOR Rate Advances;



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




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




          (e) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to this Section 3.5, and agrees to designate a different LIBOR
Lending Office if such designation will avoid the need for or reduce the amount of such
compensation and





- 27 -









 







will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender under this Section
3.5 shall set forth the basis upon which it has been determined that such an amount is due from
Borrower, a calculation of the amount due, and a certification that the corresponding costs have
been incurred by the Lender.




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



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



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



- 28 -









 





     3.9 Manner and Treatment of Payments.



          (a) Each payment hereunder (except payments pursuant to Sections 3.4, 3.5,
11.3, 11.11 and 11.22) or on the Notes or under any other Loan Document
shall be made to the Administrative Agent at the Administrative Agent’s Office for the account of
each of the Lenders or the Administrative Agent, as the case may be, in immediately available funds
not later than 2:00 p.m., Cleveland time, on the day of payment (which must be a Banking Day). All
payments received after such time, on any Banking Day, shall be deemed received on the next
succeeding Banking Day. The amount of all payments received by the Administrative Agent for the
account of each Lender shall be immediately paid by the Administrative Agent to the applicable
Lender in immediately available funds and, if such payment was received by the Administrative Agent
by 2:00 p.m., Cleveland time, on a Banking Day and not so made available to the account of a Lender
on that Banking Day, the Administrative Agent shall reimburse that Lender for the cost to such
Lender of funding the amount of such payment at the Federal Funds Effective Rate. All payments
shall be made in Dollars.




          (b) Each payment or prepayment shall be applied first to Alternate Base Rate Loans and then to
LIBOR Rate Loans. Each payment or prepayment on account of any such Alternate Base Rate Loan or
LIBOR Rate Loan shall be applied pro rata according to the outstanding Advances made by each Lender
comprising such Loan.




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




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




- 29 -









 








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



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



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



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



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



ARTICLE 4



REPRESENTATIONS AND WARRANTIES



     Borrower represents and warrants to the Lenders that:



     4.1 Existence and Qualification; Power; Compliance With Laws. Parent is a corporation
duly formed, validly existing and in good standing under the Laws of Maryland. Borrower is a
limited partnership, duly formed, validly existing and in good standing under the Laws of Maryland.
Owner is a limited liability company duly formed, validly existing and in good standing under the



- 30 -









 




Laws of Maryland. Each of the Loan Parties is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the conduct of its business or
the ownership or leasing of its Properties makes such qualification or registration necessary,
except where the failure so to qualify or register and to be in good standing would not constitute
a Material Adverse Effect. Each of the Loan Parties has all requisite power and authority to
conduct its business, to own and lease its Properties and to execute and deliver each Loan Document
to which it is a Party and to perform its Obligations. All outstanding shares of capital stock of
Parent are duly authorized, validly issued, fully paid and nonassessable, and no holder thereof has
any enforceable right of rescission under any applicable state or federal securities Laws. To
Borrower’s knowledge, each of the Loan Parties is in compliance with all Laws and other legal
requirements applicable to its business, has obtained all authorizations, consents, approvals,
orders, licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Agency
that are necessary for the transaction of its business, except where the failure so to comply,
obtain authorizations, etc., file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect. Parent is a “real estate investment trust” within the meaning of §856 of
the Code, has elected to be treated as a real estate investment trust and is subject to federal
income taxation as a real estate investment trust pursuant to §§856-860 of the Code.




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



          (a) Require any consent or approval not heretofore obtained of any partner, director,
stockholder, security holder or creditor of the Loan Parties;




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




          (c) Result in or require the creation or imposition of any Lien upon or with respect to any
Property now owned or leased or hereafter acquired by the Loan Parties;




          (d) Violate in any material respect any material Requirement of Law applicable to the Loan
Parties; or




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



and none of the Loan Parties is in violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit agreement described in Section
4.2(e), in any respect that constitutes a Material Adverse Effect.




     4.3 No Governmental Approvals Required. Except as previously obtained or made, and
except for consents, approvals or permits pertaining to construction or development of a type that



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are routinely granted and that would not normally be obtained before the commencement of
performance and which Borrower has no reason to believe will not be obtained as and when required,
no authorization, consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by any of the Loan Parties of the Loan
Documents to which it is a Party.




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



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



     4.6 No Other Liabilities; No Material Adverse Changes. The Loan Parties do not have
any material liability or material contingent liability required under Generally Accepted
Accounting Principles to be reflected or disclosed, and not reflected or disclosed, in the balance
sheets described in Section 4.5, other than liabilities and contingent liabilities arising
in the ordinary course of business since the date of such financial statements. As of the Closing
Date, no circumstance or event has occurred that constitutes a Material Adverse Effect.



     4.7 [Intentionally Omitted.]




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



     4.9 Public Utility Holding Company Act. None of the Loan Parties is a “holding
company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public
Utility Holding Company Act of 1935, as amended.



     4.10 Litigation. Except for (a) any matter fully covered as to subject matter and
amount (subject to applicable deductibles and retentions) by insurance for which the insurance
carrier has not asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against Parent or any of its Subsidiaries
of less than $5,000,000 (or, in each case in which this representation and warranty is remade after
the Closing Date, less



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than $5,000,000 or such greater amount that the Administrative Agent has reasonably
determined, after full written disclosure thereof by Borrower to the Administrative Agent, would
not constitute a Material Adverse Effect), (c) matters of an administrative nature not involving a
claim or charge against Parent or any of its Subsidiaries and (d) matters set forth in Schedule
4.10, there are no actions, suits, proceedings or investigations pending as to which Parent or
any of its Subsidiaries have been served or have received notice or, to the best knowledge of
Borrower, threatened against or affecting Parent or any of its Subsidiaries or any Property of any
of them before any Governmental Agency, mediator or arbitrator. As of the Closing Date, there are
no judgments outstanding against or affecting the Parent or any of its Subsidiaries or any Property
individually or in the aggregate involving amounts in excess of $1,000,000.




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



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



     4.13 ERISA.



          (a) With respect to each Pension Plan:




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



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



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



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



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




     4.14 Regulations T, U and X; Investment Company Act. No part of the proceeds of any
Loan hereunder will be used to purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any Margin Stock in violation of Regulations T, U and X. Neither Parent



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nor any of its Subsidiaries is or is required to be registered as an “investment company”
under the Investment Company Act of 1940, as amended.




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



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



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



     4.18 Ownership of Subject Property. The Subject Property is wholly owned in fee
simple by Owner and is free and clear of all Liens, including any Liens on any direct or indirect
interest of Borrower or any Subsidiary therein (other than the applicable Security Documents and
Permitted Liens). All of the membership interests in the Owner are held by the Borrower and are
not subject to any pledge, Negative Pledge or security interest in favor of any Person other than
the Administrative Agent. The organizational documents of Borrower and the Owner do not prohibit,
restrict or limit the Liens created on the Subject Property in favor of the Administrative Agent or
the



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subsequent transfer or encumbrance of the Subject Property or any portion thereof or interest
therein.




     4.19 Property. All of the Loan Parties’ and their respective Subsidiaries’ properties
are in good repair and condition, subject to ordinary wear and tear, other than with respect to (i)
deferred maintenance existing as of the date of acquisition of such property as permitted in this
Section 4.19, (ii) Projects currently under development and (iii) defects relating to
properties other than the Subject Property which would not constitute a Material Adverse Effect.
The Loan Parties further have completed or caused to be completed an appropriate investigation of
the environmental condition of each such property as of the later of (a) the approximate date of
the Loan Parties’ or such Subsidiaries’ purchase thereof or (b) the approximate date upon which
such property was last security for Indebtedness of such Borrower or such Subsidiary if such
financing was not closed on or about the date of the acquisition of such property to the extent
such an investigation was required by the applicable lender, including preparation of a “Phase I”
report and, if appropriate, a “Phase II” report, in each case prepared by a recognized
environmental consultant in accordance with customary standards which discloses that such property
is not in violation of the representations and covenants set forth in this Agreement, unless such
violation as to the Subject Property has been disclosed in writing to the Administrative Agent and
satisfactory remediation actions are being taken. There are no unpaid or outstanding real estate
or other taxes or assessments on or against any property of any Loan Party or any of their
respective Subsidiaries which are payable by such Person (except only real estate or other taxes or
assessments, that are not yet due and payable). There are no pending eminent domain proceedings
against the Subject Property, and, to the best knowledge of Borrower, no such proceedings are
presently threatened by any taking authority which individually or in the aggregate would
constitute a Material Adverse Effect. None of the property of the Loan Parties or their respective
Subsidiaries is now damaged or injured as a result of any fire, explosion, accident, flood or other
casualty in any manner which individually or in the aggregate would constitute a Material Adverse
Effect. The Projects owned by Parent, each of the other Loan Parties and their respective
Subsidiaries as of the date hereof, are set forth on Schedule 4.19 hereto.



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



     4.21 Other Debt. None of the Loan Parties or their respective Subsidiaries is in
default (after expiration of all applicable grace and cure periods) in the payment of any other
Indebtedness or under any mortgage, deed of trust, security agreement, financing agreement or
indenture involving Indebtedness of $5,000,000 or more or under any other material agreement or
lease to which any of them is a party. None of the Loan Parties is a party to or bound by any
agreement, instrument or indenture that may require the subordination in right or time of payment
of any of the Obligations to any other Indebtedness or obligation of such Loan Party. Schedule
4.21 hereto sets forth all of the Secured Indebtedness and recourse Indebtedness of the type
described in Sections 6.11 and 6.12 of the Loan Parties and their respective
Subsidiaries as of the date hereof.



     4.22 Solvency. As of the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all of the Loans made or to
be made hereunder, none of the Loan Parties (taken on a consolidated basis) is insolvent on a



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balance sheet basis such that the sum of such Person’s assets exceeds the sum of such Person’s
liabilities (taken on a consolidated basis), each Loan Party is able to pay its debts as they
become due, and each Loan Party has sufficient capital to carry on its business.




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



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



     4.25 No Bankruptcy Filing. None of the Loan Parties or any of their respective
Subsidiaries is contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of its Property, and none of the Loan Parties has
any knowledge of any Person contemplating the filing of any such petition against it or any
Subsidiary.



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



     4.27 Subject Property.




     (a) Each of the representations and warranties made by the Owner in any Security
Document with respect to the Subject Property is true and correct in all material respects.



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     (b) Except as disclosed on the survey provided to the Administrative Agent pursuant to
Section 8.1 of this Agreement, the Subject Property is not located in an area that
has been identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended, or any successor law, or, if located within any such area, Owner has obtained and
will maintain through the Maturity Date the insurance prescribed in Section 8.1
hereof.




     (c) To the Borrower’s knowledge, the Subject Property and the present use and occupancy
thereof are in material compliance with all material zoning ordinances (without reliance
upon adjoining or other properties), building codes, land use and Environmental Laws, and
other similar laws (“Applicable Laws”).




     (d) The Subject Property (other than the Future Development Land) is served by all
utilities required for the current or contemplated use thereof. The Subject Property has
accepted or is equipped to accept such utility service.




     (e) All public roads and streets necessary for service of and access to the Subject
Property (other than the Future Development Land) for the current or contemplated use
thereof have been completed, and are open for use by the public.




     (f) Except as may be disclosed in the reports delivered to Administrative Agent
pursuant to Section 8.1 hereof, Borrower is not aware of any material latent or
patent structural or other significant deficiency of the Subject Property. The Subject
Property is free of damage and waste that would materially and adversely affect the value of
the Subject Property, is in good repair and to Borrower’s knowledge there is no deferred
maintenance other than ordinary wear and tear. The Subject Property is free from damage
caused by fire or other casualty.




     (g) To Borrower’s knowledge, except as may be disclosed in the reports delivered to
Administrative Agent pursuant to Section 8.1 hereof, all liquid and solid waste
disposal, septic and sewer systems located on the Subject Property are in a good and safe
condition and repair and to Borrower’s knowledge, in material compliance with all Applicable
Laws with respect to such systems.




     (h) All improvements on the Subject Property lie within the boundaries and building
restrictions of the legal description of record of Subject Property, no improvements
encroach upon easements benefiting the Subject Property other than encroachments that do not
materially adversely affect the use or occupancy of the Subject Property and no improvements
on adjoining properties encroach upon the Subject Property or easements benefiting the
Subject Property other than encroachments that do not materially adversely affect the use or
occupancy of the Subject Property.




     (i) There are no material delinquent taxes, ground rents, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, or other outstanding charges affecting
the Subject Property except to the extent such items are being contested in good faith and
as to which adequate reserves have been provided, except that Owner’s federal and



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Maryland income tax returns are on extension and certain tax returns of Borrower are on
extension.


Borrower agrees that all of its representations and warranties set forth in this Article 4 and
elsewhere in this Agreement are true on the Agreement Effective Date in all material respects.




ARTICLE 5



AFFIRMATIVE COVENANTS OTHER THAN


INFORMATION AND REPORTING REQUIREMENTS




     So long as any Advance remains unpaid or any other Obligation remains unpaid, Borrower shall,
and shall cause the other Loan Parties and its other Subsidiaries to, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise consents:



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



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



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



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



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



     5.6 Permitted Business Activities. Engage only in Permitted Business Activities, and
only own assets and make Investments that will be used in connection with such Permitted Business
Activities and are incidental thereto.



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



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



     5.9 Use of Proceeds. Use the proceeds of the initial Advance to pay for a portion of
the acquisition of 100% of the ownership interests in the Owner, including customary transaction
and closing costs.



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



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



     5.12 Inspection of Properties and Books. Permit the Lenders, through the
Administrative Agent or any representative designated by the Administrative Agent, at Borrower’s
expense, to visit and inspect any of the properties of the Loan Parties or any of their respective
Subsidiaries (subject to the rights of any tenants), to examine the books of account of the Loan
Parties and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the affairs, finances and accounts of the Loan Parties and their respective Subsidiaries
with, and to be advised as to the same by, their Senior Officers, all at such reasonable times
(during normal



- 39 -









 




business hours) and intervals as the Administrative Agent or any Lender may reasonably request
upon reasonable notice; provided, however, that inspections made at Borrower’s expense shall be
limited to once per year, unless an Event of Default shall have occurred and be continuing. The
Lenders shall use good faith efforts to coordinate such visits and inspections so as to minimize
the interference with and disruption to the Loan Parties’ or such Subsidiaries’ normal business
operations.




     5.13 More Restrictive Agreements. Promptly notify the Administrative Agent should any
Loan Party or any Subsidiary of a Loan Party enter into or modify any agreements or documents
pertaining to any existing or future Indebtedness, Debt Offering or issuance of Preferred Equity,
which agreements or documents include covenants, whether affirmative or negative, which are
individually or in the aggregate more restrictive as to the matters covered by the provisions of
Sections 6.1, 6.3, 6.5 through 6.13, inclusive, and 6.15
(or any other provisions which may have the same practical effect as any of the foregoing) against
any of the Loan Parties or their respective Subsidiaries than those set forth herein, or which
provide for a guaranty of the obligations thereunder by a Person that is not liable for the
Obligations. If requested by the Requisite Lenders, the Loan Parties, the Administrative Agent,
and the Requisite Lenders shall promptly amend this Agreement and the other Loan Documents to
include some or all of such more restrictive provisions or provide for a guaranty of the
Obligations by such Person, in each case solely for the duration of such restrictive provisions or
guaranties under such other agreements or documents, as determined by the Requisite Lenders in
their sole reasonable discretion. Notwithstanding the foregoing, this Section 5.13 shall
not apply to covenants contained in any agreements or documents that relate only to a specific
Project that is collateral for any existing or future Indebtedness of any of Borrower or their
Subsidiaries that is permitted by the terms of this Agreement.



ARTICLE 6



NEGATIVE COVENANTS



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



     6.1 Mergers and Liquidation. (i) Merge or consolidate with or into any Person, except
a merger or consolidation of one or more Loan Parties with and into another Loan Party or one or
more Subsidiaries of a Loan Party with and into another Subsidiary of such Loan Party or another
Loan Party, provided that in all cases Parent and Borrower must both be surviving entities or (ii)
agree to sell, transfer or dispose of assets which, when aggregated with all other assets sold
during the current Fiscal Quarter and the three (3) preceding Fiscal Quarters, would exceed twenty
percent (20%) of the then-current Gross Asset Value. Notwithstanding the foregoing, the Borrower
may permit the merger or consolidation of any Subsidiary or any transfer of any Project, so long as
such transaction is permitted by, and satisfies the requirements of, the Related Facilities.



     6.2 ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any non exempt
“prohibited transaction” (as defined in Section 4975 of the Code) that would constitute a Material
Adverse Effect, (ii) fail to comply with ERISA in a manner that would constitute a Material



- 40 -









 




Adverse Effect, (iii) incur any material “accumulated funding deficiency” (as defined in
Section 302 of ERISA) to the extent that it would constitute a Material Adverse Effect or (iv)
terminate in any manner that would constitute a Material Adverse Effect, or (b) withdraw,
completely or partially, from any Multiemployer Plan if to do so would constitute a Material
Adverse Effect.




     6.3 Permitted Business Activities. Engage in or pursue any business or other
activities or ventures other than Permitted Business Activities, or otherwise make any material
change in the principal nature of the business of the Consolidated Group.



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



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



     6.6 Interest Coverage. Permit the Interest Coverage Ratio, as of any day, to be less
than 1.80 to 1.00.



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



     6.8 [Intentionally Omitted].



     6.9 Net Worth. Permit Net Worth, as of any date, to be less than the sum of (a)
$625,000,000 and (b) eighty five percent (85%) of the net proceeds from any Equity Offering of any
Loan Party made after the Closing Date.



     6.10 [Intentionally Omitted].



     6.11 Secured Indebtedness. Permit Secured Indebtedness of the Consolidated Group to
exceed, as of any date, an amount equal to 50% of then-current Gross Asset Value.



     6.12 Recourse Debt. Permit the aggregate of all outstanding recourse Indebtedness
whether secured or unsecured (including all Indebtedness under the Related Facilities and any other
recourse Indebtedness), as of any date, to exceed 45% of then-current Gross Asset Value.



     6.13 Permitted Investments. Without limiting Section 5.6:



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          (a) permit the sum of (i) the total value of undeveloped land owned by the Consolidated Group
plus (ii) the Consolidated Group Pro Rata Share of undeveloped land owned by Investment Affiliates
to exceed 10% of Gross Asset Value (with undeveloped land valued at cost);




          (b) permit the sum of (i) the aggregate amount invested by the Consolidated Group in Projects
owned by the Consolidated Group that are under development plus (ii) the Consolidated Group Pro
Rata Share of any amounts so invested by the Investment Affiliates in Projects owned by the
Investment Affiliates that are under development to exceed 20% of Gross Asset Value (with Projects
under development ceasing to be treated as such when GAAP permits such Project to be classified as
an operating asset);




          (c) permit the aggregate amount invested by the Consolidated Group in assets other than
Projects or cash or Cash Equivalents to exceed 10% of Gross Asset Value;




          (d) permit the aggregate amount invested by the Consolidated Group in or with respect to
Investment Affiliates, excluding the partnership that owns the real property located in San Diego,
California commonly known as the “McKellar Court” property, to exceed 10% of Gross Asset Value; and




          (e) permit the aggregate amount invested by the Consolidated Group in the Investments listed
as subparagraphs (a) through (d) immediately above to exceed 25% of Gross Asset Value.




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



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




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




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




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





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affect the marketability of the same or interfere with the use thereof in the business of
Borrower or any other member of the Consolidated Group;




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




          (f) Liens in favor of the Administrative Agent and the Lenders under the Loan Documents;




          (g) Liens other than Liens described in subsections (a) through (f) above arising in
connection with any Indebtedness permitted hereunder to the extent such Liens will not result in a
Default in any of Borrower’s covenants herein; and




          (h) Any Liens, mortgages, security agreements or financing statements entered into in
connection with the Related Facilities.



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




     6.15 Variable Interest Indebtedness. Permit the outstanding principal balance of any
Consolidated Outstanding Indebtedness which bears interest at an interest rate that is not fixed
through the maturity date of such Indebtedness to exceed thirty-five percent (35%) of Gross Asset
Value unless all of such Indebtedness in excess of such amount is subject to a rate management
transaction approved in its reasonable discretion by the Administrative Agent that effectively
converts the interest rate on such excess to a fixed rate.



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



     6.17 Restrictions on Transfer. Directly or indirectly, make or permit to be made, by
voluntary or involuntary means, any sale, assignment, transfer, disposition, mortgage, pledge,
hypothecation or encumbrance of its direct or indirect interest in any Loan Party (provided that
the foregoing shall not prohibit transfers of Borrower’s interest in any other Loan Party provided
such Loan Party remains a Wholly-Owned Subsidiary of Borrower), or any dilution of its direct or
indirect interest in any Loan Party. Borrower shall not in any manner transfer, assign, diminish
or otherwise restrict its direct or indirect right to vote or other rights with respect to any Loan
Party. Notwithstanding the foregoing, Borrower may sell, assign, transfer or dispose of its
interest in another Loan Party that is a Subsidiary of Borrower, provided that on or before the
closing of such sale Borrower shall have delivered to the Administrative Agent a certification,
together with such



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other evidence as the Administrative Agent may reasonably require, that Borrower will be in
compliance with all covenants in this Agreement after giving effect to such sale, assignment,
transfer or other disposition.




ARTICLE 7



INFORMATION AND REPORTING REQUIREMENTS



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



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




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




          (c) As soon as practicable, and in any event within fifty (50) days after the end of each
Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for
the Subject Property and a complete Project roster, each in such detail as the Administrative Agent
may reasonably require




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




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




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




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




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




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




          (j) As soon as practicable, and in any event within five (5) Banking Days after a Senior
Officer becomes aware of the existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no
more than five (5) Banking Days after such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what action the Consolidated Group is taking
or propose to take with respect thereto;




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




          (l) As soon as practicable, and in any event within thirty (30) days after the end of each
calendar month, a monthly rent roll and operating statement for the Subject Property, all in
reasonable detail;




          (m) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated
Group (including the fourth fiscal quarter in each year), a list (which may be included





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in the Compliance Certificates) setting forth the following information with respect to each
new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and
ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such
Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may
reasonably request;




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




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




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



ARTICLE 8




CONDITIONS




     8.1 Initial Advance. The obligation of the Lenders to make the initial Advance is
subject to the following conditions precedent, each of which shall be satisfied prior to the making
of the initial Advance (unless all of the Lenders, in their sole and absolute discretion, shall
agree otherwise):



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




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



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



               (iii) at least one (1) executed copy of each of the Security Documents and the delivery of an
original of all recordable documents to Commonwealth Land Title Insurance Company to hold as
escrowee (“Escrow Agent”) for recording at the Administrative Agent’s direction after an
Event of Default pursuant to an escrow agreement in form and substance satisfactory to the
Administrative Agent;



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



               (v) the Opinions of Counsel;



               (vi) a photocopy of the fully executed lease of the portion of the Subject Property described
on Exhibit E-1 hereto to HGS, in the form attached to the HGS Purchase Agreement as
Exhibit K thereto (the “HGS Lease”), together with an estoppel certificate and a
Subordination, Non-Disturbance and Attornment Agreement each executed by HGS in form reasonably
satisfactory to the Administrative Agent;



               (vii) a survey of the Subject Property in the form provided for in the HGS Purchase Agreement;



               (viii) a copy of the Owner’s title insurance policy covering the Subject Property in the form
required under the HGS Purchase Agreement;



               (ix) a copy of the Lender’s title insurance commitment covering the Subject Property based on
the form required under the HGS Purchase Agreement for the Owner’s title insurance policy to the
Escrow Agent for issuance of a Lender’s policy, if at all, after the occurrence and during the
continuance of an Event of Default pursuant to an escrow agreement in form and substance
satisfactory to the Administrative Agent;



               (x) engineering reports and Phase I environmental assessments with respect to the Subject
Property in form reasonably satisfactory to the Administrative Agent;



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               (xi) copies of certificates evidencing the insurance coverage required under the HGS Lease,
including in the case of fire and casualty insurance, insuring the interests of the Administrative
Agent under a standard mortgagee clause;



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



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




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




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




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




          (f) The Administrative Agent shall have received a Compliance Certificate dated as of the
Closing Date demonstrating compliance with each of the then applicable covenants calculated
therein.




          (g) The duly executed originals of the Security Documents signed by each of the parties
thereto (or receipt by the Administrative Agent from a party thereto of a facsimile signature pages
signed by such party which shall have agreed to promptly provide the Administrative Agent with the
originally executed counterparts thereof). Additionally, the Administrative Agent shall have
received, at Borrower’s expense, evidence in form and substance satisfactory to the Administrative
Agent that, upon recordation of the Deed of Trust, the Security Documents will be effective to
create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable first priority security interest in the Subject Property described in the Security
Documents and that, upon the completion of such recordation and filing, all filings, recordings,
deliveries of instruments and other actions necessary or desirable to protect and preserve such
security interests shall have been dully effected and that any and all consents necessary or
desirable with respect to such security interest, shall have been received and remain in full force
and effect.




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




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ARTICLE 9



EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT



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



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




          (b) Any sale of all or a portion of the Subject Property (or a sale of all or any portion of
any equity interest in the Owner) shall occur.




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




          (d) Borrower or any of the other Loan Parties fails to comply with any of the covenants
contained in Article 6; or




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




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




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




          (h) Borrower or any Loan Party or other member of the Consolidated Group fails to perform or
observe any other term, covenant or agreement on its part to be performed or observed within any
applicable notice and cure period, or suffers any such event of default to occur,





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in connection with (A) any present or future Indebtedness other than Non-Recourse Indebtedness
or (B) any present or future Non-Recourse Indebtedness having an outstanding principal balance,
individually or in the aggregate, of $20,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the
right to declare such Indebtedness due before the date on which it otherwise would become due or
the right to require such member of the Consolidated Group to redeem or purchase, or offer to
redeem or purchase, all or any portion of such Indebtedness (provided, that for the purpose of this
clause (g), the principal amount of Indebtedness consisting of a Swap Agreement shall be the amount
which is then payable by the counterparty to close out the Swap Agreement); or




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




          (j) A final judgment against any member of the Consolidated Group is entered for the payment
of money in excess of $5,000,000 (not covered by insurance or for which an insurer has reserved its
rights) and, absent procurement of a stay of execution, such judgment remains unsatisfied for sixty
(60) calendar days after the date of entry of judgment, or in any event later than ten (10) days
prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material part of the Property
of any such Person and is not released, vacated or fully bonded within sixty (60) calendar days
after its issue or levy; or




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




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




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




- 50 -









 








          (n) Alan Gold shall at any time cease to be the Chief Executive Officer of Parent; provided
that the foregoing shall not constitute an Event of Default if a competent and experienced
successor for such Person shall be approved by the Requisite Lenders within three (3) months of
such event, such approval not to be unreasonably withheld, delayed or conditioned; or




          (o) Failure to remediate within the time period permitted by Law or governmental order, after
all administrative hearings and appeals have been concluded (or within a reasonable time in light
of the nature of the problem if no specific time period is so established), material environmental
problems at Projects owned by Borrower or any other member of the Consolidated Group or any
Investment Affiliate which contribute in the aggregate in excess of $5,000,000 to Gross Asset
Value.




     Notwithstanding the foregoing, Lenders have agreed that the Indemnity Deed of Trust, Security
Agreement, Assignment of Rents and Fixture Filing and the Indemnity Assignment of Leases and Rents
included in the Security Documents shall be effective but shall not be recorded in the recorder’s
office of Montgomery County, Maryland, unless and until an Event of Default shall have occurred and
be continuing under the Loan Documents. Provided further that with respect to any Event of Default
other than with respect to Sections 9.1(a) and 9.1(b) hereof, Administrative Agent shall give
Borrower thirty (30) days prior written notice of its intention to record the Deed of Trust and
Administrative Agent shall be permitted to cause such recording to occur if such thirty (30) day
period has expired and Borrower shall not have cured the Event of Default.



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



          (a) Upon the occurrence, and during the continuance, of any Event of Default other than an
Event of Default described in Section 9.1(k), the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon shall, declare all or any part of
the unpaid principal of all Notes, all interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents to be forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by Borrower.




          (b) Upon the occurrence and during the continuance of any Event of Default described in
Section 9.1(k), the unpaid principal of all Notes, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents shall be forthwith due and payable, all
without protest, presentment, notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrower.




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




- 51 -









 








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




ARTICLE 10



THE ADMINISTRATIVE AGENT



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



     10.2 Administrative Agent and Affiliates. KeyBank (and each successor Administrative
Agent in its individual capacity) has the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not the Administrative Agent, and the term
“Lender” or “Lenders” includes KeyBank in its individual capacity. KeyBank (and each successor
Administrative Agent in its individual capacity) and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business with Borrower or any
other member of the Consolidated Group, as if it were not the Administrative Agent and without any
duty to account therefor to the Lenders. KeyBank (and each successor Administrative Agent in its
individual capacity) need not account to any other Lender for any monies received by it for
reimbursement of its costs and expenses as the Administrative Agent



- 52 -









 




hereunder, or for any monies received by it in its capacity as a Lender hereunder, other than
as required of any Lender hereunder. The Administrative Agent shall not be deemed to hold a
fiduciary or agency relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against the Administrative Agent.




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



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



      10.5 Action by Administrative Agent.



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




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




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





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contrary to any Loan Document or to applicable Law or would result, in the reasonable judgment
of the Administrative Agent, in substantial risk of liability to the Administrative Agent.




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




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



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




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




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




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




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




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




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




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




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



     10.8 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon reasonable notice to the Lenders and Borrower effective not earlier than
thirty (30) days after such notice, upon acceptance of appointment by a successor Administrative
Agent. The Requisite Lenders may (with the prior consent, not to be unreasonably withheld or
delayed, of Parent, unless an Event of Default shall have occurred and be continuing) remove the
Administrative Agent from its capacity as Administrative Agent in the event of the Administrative



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Agent’s willful misconduct or gross negligence. If the Administrative Agent shall resign or
be removed as Administrative Agent under this Agreement, the Requisite Lenders shall appoint from
among the Lenders a successor Administrative Agent for the Lenders, which successor Administrative
Agent shall require approval by Parent so long as no Default or Event of Default has occurred and
is continuing (and such approval shall not be unreasonably withheld or delayed). If no successor
Administrative Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and,
so long as no Default or Event of Default has occurred and is continuing, with the consent of
Parent, a successor Administrative Agent from among the Lenders. Upon the acceptance of its
appointment as successor Administrative Agent hereunder, such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative Agent and the term
“Administrative Agent” shall mean such successor Administrative Agent and the retiring
Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent,
the provisions of this Article 10, and Sections 11.3, 11.11 and
11.22, shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. Notwithstanding the foregoing, if no
successor Administrative Agent has accepted appointment as Administrative Agent by the date which
is thirty (30) days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders
shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor Administrative Agent as provided for above.




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



ARTICLE 11



MISCELLANEOUS



     11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and remedies of
the Administrative Agent and the Lenders provided herein or in any Note or other Loan Document are
cumulative and not exclusive of any right, power, privilege or remedy provided by Law or equity.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right,
power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or further exercise of
the same or any other right, power, privilege or remedy. The terms and conditions of



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Article 8 hereof are inserted for the sole benefit of the Administrative Agent and the
Lenders; the same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent’s or the Lenders’ rights to assert
them in whole or in part in respect of any other Loan.




     11.2 [Intentionally Omitted.]




     11.3 Costs, Expenses and Taxes. Borrower shall pay within five (5) Banking Days after
demand, accompanied by an invoice therefor, the reasonable costs and expenses of the Administrative
Agent in connection with the negotiation, preparation, syndication, execution, delivery,
administration and interpretation of the Loan Documents and any amendment thereto or waiver
thereof. Following and during the continuation of an Event of Default, Borrower shall also pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of the Administrative
Agent and the Lenders in connection with the refinancing, restructuring, reorganization (including
a bankruptcy reorganization) and enforcement or attempted enforcement of the Loan Documents, and
any matter related thereto. The foregoing costs and expenses shall include filing fees, recording
fees, title insurance fees, appraisal fees, search fees, and other out of pocket expenses and the
reasonable fees and out of pocket expenses of any legal counsel (including reasonably allocated
costs of legal counsel employed by the Administrative Agent or any Lender), independent public
accountants and other outside experts retained by the Administrative Agent or any Lender, whether
or not such costs and expenses are incurred or suffered by the Administrative Agent or any Lender
in connection with or during the course of any bankruptcy or insolvency proceedings of any member
of the Consolidated Group. Borrower shall pay any and all documentary and other taxes, excluding
(i) taxes imposed on or measured in whole or in part by any Lender’s overall net income imposed on
such Lender (including taxes on gross income imposed in lieu of net income, minimum taxes or branch
profits taxes) by (A) any jurisdiction (or political subdivision thereof) in which such Lender is
organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which such Lender is “doing business” or (ii) any withholding
taxes or other taxes based on gross income imposed by the United States of America for any period
with respect to which any Lender has failed, for any reason, to provide Borrower with the
appropriate form or forms required by Section 11.21, to the extent such forms are then
required by applicable Laws to establish a complete exemption, and all costs, expenses, fees and
charges payable or determined to be payable in connection with the filing or recording of this
Agreement, any other Loan Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto, and shall reimburse,
hold harmless and indemnify on the terms set forth in Section 11.11 the Administrative
Agent and the Lenders from and against any and all loss, liability or legal or other expense with
respect to or resulting from any delay in paying or failure to pay any such tax, cost, expense, fee
or charge or that any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any Lender under this
Section 11.3 shall bear interest from the fifth Banking Day following the date of demand
for payment at the Default Rate.



     11.4 Nature of Lenders’ Obligations. The obligations of the Lenders hereunder are
several and not joint or joint and several. Nothing contained in this Agreement or any other Loan
Document and no action taken by the Administrative Agent or the Lenders or any of them pursuant



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hereto or thereto may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with Borrower or any other member of the
Consolidated Group. A default by any Lender will not increase the Percentage of the Commitments
attributable to any other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in default, but is not
obligated to do so. The Administrative Agent agrees that it will use reasonable efforts (which
will not include the payment of money) either to induce the other Lenders to assume the obligations
of a Lender in default or to obtain another Lender, reasonably satisfactory to Borrower, to replace
such a Lender in default. A defaulting Lender’s right to participate in the administration of the
Loan Documents, including, without limitation, any rights to consent to or direct any action or
inaction of the Administrative Agent or to vote on any matter presented to the Lenders shall be
suspended during the pendency of such Lender’s default.




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



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



     11.7 Execution of Loan Documents. Unless the Administrative Agent otherwise specifies
with respect to any Loan Document, (a) this Agreement and any other Loan Document may be



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




     11.8 Binding Effect; Assignment.



          (a) This Agreement and the other Loan Documents to which the Loan Parties are a party are and
will be binding upon and inure to the benefit of the Loan Parties, the Administrative Agent, each
of the Lenders, and their respective successors and assigns, except that the Loan Parties may not
assign their rights hereunder or thereunder or any interest herein or therein without the prior
written consent of all the Lenders, and any purported assignment without such consent shall be null
and void. Each Lender represents that it is not acquiring its Note with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement
that disposition of such Note must be within the control of such Lender). Any Lender may at any
time pledge or assign a security in all or any portion of its Note or any other instrument
evidencing its rights as a Lender under this Agreement to secure obligations of such Lender,
including without limitation (i) any pledge or assignment to secure obligations to a Federal
Reserve Bank, and (ii) in the case of a Lender that is a Related Fund, any pledge or assignment to
any holders of obligations owed, or security issued, by such Lender, including to any trustee for,
or any other representative of such holders, provided that no such pledge shall release that Lender
from its obligations hereunder or grant to such Federal Reserve Bank or other pledgee or assignee
the rights of a Lender hereunder absent foreclosure of such pledge or assignment.




          (b) From time to time following the Closing Date, each Lender may assign to one or more
Eligible Assignees all or any portion of its Commitment; provided that (i) such Eligible Assignee,
if not then a Lender or an Affiliate or Related Fund of a Lender, shall require approval by the
Administrative Agent and (if no Event of Default then exists) Parent (neither of which approvals
shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by a
Commitments Assignment and Acceptance, a copy of which, together with any Notes subject to such
assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in
the case of an assignment to an Affiliate or Related Fund of the assigning Lender, to another
Lender or of the entire remaining Commitment of the assigning Lender, the assignment shall not
assign a share of the Commitment that is equivalent to less than $5,000,000, (iv) the assignment
shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations
under this Agreement, and (v) the effective date of any such assignment shall be as specified in
the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking
Days after the date the Administrative Agent has received the Commitments Assignment and Acceptance
unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitments
Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes
of this Agreement, with a Percentage and Commitment amount as therein (and herein, if such Eligible
Assignee was already a Lender) set forth and, to the





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extent of the portion of the Commitment assigned, the assigning Lender shall be released from
its further obligations under this Agreement. Borrower agrees that it shall execute and deliver to
such assignee Lender, Notes evidencing that assignee Lender’s Commitment, and to the assigning
Lender, Notes evidencing the remaining balance of such Lender’s Commitment.




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




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




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          (e) Each Lender may from time to time grant participations to one or more banks or other
financial institutions (including another Lender but excluding an Employee Plan) in a portion of
its Commitment; provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation agreement so provides,
for the purposes of Sections 3.7, 3.8, 11.11 and 11.22 but only to
the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would
have incurred absent the participation, (iv) Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, (v) the participation interest shall be
expressed as a percentage of the granting Lender’s Commitment as it then exists and shall not
afford such participant any rights or privileges under the Loan Documents except as provided in
clause (iii) above.




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



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



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to this Section 11.10 shall from and after the purchase have the right to give all
notices, requests, demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in an Obligation so purchased
pursuant to this Section 11.10 may exercise any and all rights of setoff, banker’s lien or
counterclaim with respect to the participation as fully as if the Lender were the original owner of
the Obligation purchased.




     11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and hold harmless the
Administrative Agent and Lead Arranger and each Lender and their respective directors, officers,
agents, attorneys and employees (collectively the “Indemnitees”) from and against: (a) any and all
claims, demands, actions or causes of action (except a claim, demand, action, or cause of action
for any amount excluded from the definition of “Taxes” in Section 3.9(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or omission (or alleged act
or omission) of Borrower, the other members of the Consolidated Group or any of their officers,
directors or stockholders relating to the Commitments, the use or contemplated use of proceeds of
any Loan, or the relationship of Borrower and the Lenders under this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clause (a) above; and (c) any and all
liabilities, losses, costs or expenses (including reasonable attorneys’ fees and the reasonably
allocated costs of attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result of the assertion of
any foregoing claim, demand, action or cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own gross negligence or willful misconduct
or for any loss asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly notify Borrower, but
the failure to so promptly notify Borrower shall not affect Borrower’s obligations under this
Section unless such failure materially prejudices Borrower’s right to participate in the contest of
such claim, demand, action or cause of action, as hereinafter provided. Such Indemnitee may (and
shall, if requested by Borrower in writing) contest the validity, applicability and amount of such
claim, demand, action or cause of action and shall permit Borrower to participate in such contest.
Any Indemnitee that proposes to settle or compromise any claim or proceeding for which Borrower may
be liable for payment of indemnity hereunder shall give Borrower written notice of the terms of
such proposed settlement or compromise reasonably in advance of settling or compromising such claim
or proceeding and shall obtain Borrower’s prior written consent (which shall not be unreasonably
withheld or delayed). In connection with any claim, demand, action or cause of action covered by
this Section 11.11 against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the Indemnitees or
attorneys employed by an Indemnitee or a combination of the foregoing) selected by the Indemnitees
and reasonably acceptable to Borrower; provided, that if such legal counsel determines in good
faith that representing all such Indemnitees would or could result in a conflict of interest under
Laws or ethical principles applicable to such legal counsel or that a defense or counterclaim is
available to an Indemnitee that is not available to all such Indemnitees, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit unqualified assertion of
such a defense or counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably acceptable to Borrower,
with all such legal counsel using reasonable efforts to avoid unnecessary



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duplication of effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to representation by
separate legal counsel (which may be a law firm or attorneys employed by the Administrative Agent
or a combination of the foregoing). Any obligation or liability of Borrower to any Indemnitee
under this Section 11.11 shall survive the expiration or termination of this Agreement and
the repayment of all Loans and the payment and performance of all other Obligations owed to the
Lenders.




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



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




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




          (c) The relationship between Borrower and the Administrative Agent and the Lenders is, and
shall at all times remain, solely that of borrowers and lenders; neither the Administrative Agent
nor the Lenders shall under any circumstance be construed to be partners or joint venturers of
Borrower or any other member of the Consolidated Group, neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or any other member of the Consolidated Group, or to owe any
fiduciary duty to Borrower or any other member of the Consolidated Group; neither the
Administrative Agent nor the Lenders undertake or assume any responsibility or duty to Borrower or
any other member of the Consolidated Group, to select, review, inspect, supervise, pass judgment
upon or inform Borrower or any other member of the Consolidated Group, of any matter in connection
with their Property or the operations of Borrower or any other member of the Consolidated Group;
Borrower and such other members shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent or the Lenders in connection with such matters is
solely for the protection of the Administrative Agent and the Lenders and neither Borrower nor any
other Person is entitled to rely thereon; and




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




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



     11.14 Confidentiality.



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



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




          (b) Disclosures. Any Lender Party or its legal counsel may disclose the Confidential
Information (i) to Borrower, other Lenders, the Administrative Agent or any of their respective
legal counsel, (ii) to its auditors in connection with bank audits or regulatory officials having
jurisdiction over such Lender Party, (iii) to its legal counsel who need to know the Confidential
Information for the purposes of representing or advising the Lender Parties, (iv) to its
consultants, agents and advisors retained in good faith by such Lender Party with a need to know
such information in connection with a Permitted Purpose or to otherwise advise or consult with such
Lender Party, (v) as required by Law or legal process (subject to the terms below), or in
connection





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



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




          (c) No Rights in Confidential Information. The Administrative Agent and each Lender
recognizes and agrees that nothing contained in this Section 11.14 shall be construed as





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granting any property rights, by license or otherwise, to any Confidential Information (other
than the Agreement or any amendments thereto or any related agreements), or to any invention or any
patent, copyright, trademark, or other intellectual property right that has issued or that may
issue, based on such Confidential Information (other than the Agreement or any amendments thereto
or any related agreements). No Lender Party shall make, have made, use or sell for any purpose any
product or other item using, incorporating or derived from any such Confidential Information;
provided that the foregoing shall not limit or restrict in any way the creation, use or
sale of banking or related services by any Lender Party.




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




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




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




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




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



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



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



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



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



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



     11.21 Delivery of Tax Forms. Each Lender that is incorporated or otherwise organized
under the Laws of a jurisdiction other than the United States of America or any State thereof or
the District of Columbia shall deliver to Borrower (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two duly completed copies, signed
by a Responsible Official, of either Form W-8BEN (relating to such Lender and entitling it to a
complete exemption from withholding on all payments to be made to such Lender by Borrower pursuant
to this Agreement) or Form W-8ECI (relating to all payments to be made to such Lender by Borrower
pursuant to this Agreement), or W-8IMY, as applicable, of the United States of America Internal
Revenue Service or such other evidence satisfactory to Borrower and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to such Lender. If a
Lender is claiming a “portfolio interest exemption,” such Lender shall, in addition to Form W-8BEN,
provide a certificate signed by a Responsible Official to the effect that (i) such Lender is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) such Lender is not a 10%
shareholder of Borrower, and (iii) such Lender is not related to Borrower within the meaning of
Section 881(c)(3)(C) of the Code. Thereafter and from time to time, including before the
expiration of any previously delivered form, each such Lender shall (a) promptly submit to Borrower
(with a copy to the Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by the relevant United
States of America taxing authorities) as may then be required under then current United States of
America



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Laws and regulations to avoid, or such evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from, United States of America withholding taxes in
respect of all payments to be made to such Lender by Borrower pursuant to this Agreement and (b)
take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re designation of its LIBOR Lending
Office, if any) to avoid any applicable deduction or withholding for taxes from amounts payable to
such Lender. In the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial institution that
is incorporated or otherwise organized under the Laws of a jurisdiction other than the United
States of America, any State thereof or the District of Columbia, then, upon request made by
Borrower or the Administrative Agent to the Lender which granted such participation, such Lender
shall cause such participant financial institution to deliver the same documents and information to
Borrower and the Administrative Agent as would be required under this Section if such financial
institution were a Lender. Each Lender that is a United States of America Person shall, upon the
reasonable request of Borrower, deliver Form W-9 on or before the Closing Date (or on or before
accepting an assignment or receiving a participation pursuant to Section 11.8, if
applicable) and before the expiration of a previously delivered form.




     11.22 Hazardous Material Indemnity. Borrower hereby agrees to indemnify, hold
harmless and defend (by counsel reasonably satisfactory to the Administrative Agent) the
Administrative Agent and each of the Lenders and their respective directors, officers, employees,
agents, successors and assigns from and against any and all claims, losses, damages, liabilities,
fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith (including but not limited to reasonable attorneys’ fees and the reasonably
allocated costs of attorneys employed by the Administrative Agent or any Lender, and expenses to
the extent that the defense of any such action has not been assumed by Borrower), arising directly
or indirectly out of (i) the presence on, in, under or about any Projects of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials on, under or from any Projects
and (ii) any activity carried on or undertaken on or off any Projects by Borrower or any Loan Party
or any of their predecessors in title, whether prior to or during the term of this Agreement, and
whether by Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors thereof, or any third persons at any time occupying or present on any Project, in
connection with the handling, treatment, removal, storage, decontamination, clean up, transport or
disposal of any Hazardous Materials at any time located or present on, in, under or about any
Project. The foregoing indemnity shall further apply to any residual contamination on, in, under
or about any Project, or affecting any natural resources, and to any contamination of any Project
or natural resources arising in connection with the generation, use, handling, storage, transport
or disposal of any such Hazardous Materials, and irrespective of whether any of such activities
were or will be undertaken in accordance with applicable Laws, but the foregoing indemnity shall
not apply to Hazardous Materials on any Project, the presence of which is caused by the
Administrative Agent or the Lenders. Borrower hereby acknowledges and agrees that, notwithstanding
any other provision of this Agreement or any of the other Loan Documents to the contrary, the
obligations of Borrower under this Section (and under Sections 4.17 and 5.10) shall
be unlimited corporate obligations of Borrower and shall not be secured by any Lien on any Project.
Any obligation or liability of Borrower to any Indemnitee under this Section 11.22 shall
survive the expiration or termination of this Agreement and the



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repayment of all Loans and the payment and performance of all other Obligations owed to the
Lenders.




     11.23 [Intentionally Omitted].



     11.24 Removal of a Lender. Borrower shall have the right to remove a Lender as a
party to this Agreement if (a) such Lender is paid a material amount by Borrower pursuant to
Section 3.4 or Section 3.5, (b) any of the events described in Section
9.1(k) occurs with respect to such Lender, or (c) such Lender becomes (and at the time of the
proposed removal hereunder remains) a Defaulting Lender hereunder. Upon notice from Borrower, such
Lender shall execute and deliver a Commitments Assignment and Acceptance covering that Lender’s
Percentage of the Commitments in favor of such Eligible Assignee as Borrower may designate with the
approval of the Administrative Agent, subject to payment in full by such Eligible Assignee of all
principal, interest and fees and any other amount owing to such Lender through the date of
assignment. The removal of any Defaulting Lender pursuant to this Section 11.24 shall not
preclude Borrower from pursuing all remedies available to it against such Defaulting Lender for
damages arising out of such Defaulting Lender’s breach hereof.



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



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



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



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



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




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




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




          (d) If, following the payment in full of all amounts due pursuant to Section 11.28(c)
above to the Non-Defaulting Lenders (including the Administrative Agent, unless the Administrative
Agent is the Defaulting Lender) which have funded all or any portion of any Defaulted Amount, there
remains any unfunded Defaulted Amount which has not been funded by






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the Non-Defaulting Lenders, the Administrative Agent or the Defaulting Lender (“Unfunded
Defaulted Amount”), then a portion of the Defaulting Lender’s interest in the Loan, the Loan
Documents and the proceeds thereof equal to the amount of the Unfunded Defaulted Amount (together
with interest thereon at the rate applicable to the Defaulted Amount from time to time pursuant to
the Loan Documents) shall be subordinated to the interests of the Non-Defaulting Lenders
(including the Administrative Agent, unless the Administrative Agent is the Defaulting Lender)
unless and until such Unfunded Defaulted Amount is funded either by one or more Non -Defaulting
Lenders, the Administrative Agent or the Defaulting Lender.




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




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




ARTICLE 12



AMENDMENTS; CONSENTS



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



          (a) To amend, modify, forgive, reduce or waive the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on, any Note, or the amount of the
Commitments or the Percentage of any Lender or the amount of any commitment fee payable to any
Lender, or any other fee or amount payable to any Lender under the Loan Documents or to waive an
Event of Default consisting of the failure of Borrower to pay when due principal, interest or any
fee;




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




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




          (d) To amend or waive this Section 12.1;




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




          (f) To release Borrower or any Guarantor or any Collateral except as specifically provided in
the Security Documents; or




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




     No amendment, modification, supplement, extension, termination or waiver or consent may be
effective to require a Lender to fund more than its Percentage of a Request for an Advance, without
the approval of any Lender affected thereby. Any amendment, modification, supplement, termination,
waiver or consent pursuant to this Section 12.1 shall apply equally to, and shall be
binding upon, all the Lenders and the Administrative Agent.



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



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

	 	 	 	By:
	 	/s/ Gary A. Kreitzer
	 

	 	 	 	Title:
	 	Executive VP
	 
	 	 	 	 	 	 
	 	 	Address:
	 
	 	 	 	 	 	 
	 	 	BioMed Realty, LP
	 	 	17140 Bernardo Center Drive, Suite 222
	 	 	San Diego, California 92128






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	 	ADMINISTRATIVE AGENT:
	 
	 	 
	 

	 	KEYBANK NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent
	 
	 	 
	 

	 	By: /s/ Scott Childs
	 
	 

	 	Title: Vice President
	 
	 	 
	 

	 	Address:
	 
	 	 
	 

	 	KeyBank — Real Estate Capital
	 

	 	127 Public Square — 8th Floor
	 

	 	Mail Code: OH-01-27-0839
	 

	 	Cleveland, Ohio 44114
	 

	 	Phone: 216-689-5989
	 

	 	Facsimile: 216-689-4997
	 

	 	Attn: Scott Childs
	 
	 	 
	 

	 	LENDERS:
	 
	 	 
	 

	 	KEYBANK NATIONAL ASSOCIATION, a
	 

	 	national banking association
	 
	 	 
	 

	 	By: /s/ Scott Childs
	 
	 

	 	Title: Vice President
	 
	 	 
	 

	 	Address:
	 
	 	 
	 

	 	KeyBank — Real Estate Capital
	 

	 	127 Public Square — 8th Floor
	 

	 	Mail Code: OH-01-27-0839
	 

	 	Cleveland, Ohio 44114
	 

	 	Phone: 216-689-5989
	 

	 	Facsimile: 216-689-4997
	 

	 	Attn: Scott Childs







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