exv10w1



 





Exhibit 10.1




 





$75,000,000




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




December 7, 2007,




Among




GRUBB & ELLIS COMPANY,




as the Borrower,




THE GUARANTORS NAMED HEREIN,




as Guarantors,




THE INITIAL LENDER NAMED HEREIN,




DEUTSCHE BANK TRUST COMPANY AMERICAS,




as Syndication Agent,




DEUTSCHE BANK SECURITIES INC.,




as Sole Book-Running Manager and Sole Lead Arranger,




and




DEUTSCHE BANK TRUST COMPANY AMERICAS,




as Initial Issuing Bank, Swing Line Bank and Administrative Agent




 





 









 





T A B L E O F C O N T E N T S




	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01
	 	Certain Defined Terms	 	 	1	 
	SECTION 1.02
	 	Computation of Time Periods; Other Definitional Provisions	 	 	26	 
	SECTION 1.03
	 	Accounting Terms	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01
	 	The Advances and the Letters of Credit	 	 	26	 
	SECTION 2.02
	 	Making the Advances	 	 	27	 
	SECTION 2.03
	 	Issuance of and Drawings and Reimbursement Under Letters of Credit	 	 	30	 
	SECTION 2.04
	 	Repayment of Advances	 	 	31	 
	SECTION 2.05
	 	Termination or Reduction of the Commitments	 	 	33	 
	SECTION 2.06
	 	Prepayments	 	 	33	 
	SECTION 2.07
	 	Interest	 	 	34	 
	SECTION 2.08
	 	Fees	 	 	35	 
	SECTION 2.09
	 	Conversion of Advances	 	 	36	 
	SECTION 2.10
	 	Increased Costs, Etc	 	 	36	 
	SECTION 2.11
	 	Payments and Computations	 	 	38	 
	SECTION 2.12
	 	Taxes	 	 	39	 
	SECTION 2.13
	 	Sharing of Payments, Etc	 	 	40	 
	SECTION 2.14
	 	Use of Proceeds	 	 	41	 
	SECTION 2.15
	 	Defaulting Lenders	 	 	41	 
	SECTION 2.16
	 	Evidence of Debt	 	 	43	 
	SECTION 2.17
	 	Extension of Termination Date	 	 	44	 
	SECTION 2.18
	 	Reallocation of Lender Pro Rata Shares	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01
	 	Conditions Precedent	 	 	45	 
	SECTION 3.02
	 	Conditions Precedent to Each Borrowing and Issuance and any Extension	 	 	48	 
	SECTION 3.03
	 	Determinations Under Section 3.01	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01
	 	Representations and Warranties of the Borrower	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE V COVENANTS OF THE BORROWER	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01
	 	Affirmative Covenants	 	 	55	 
	SECTION 5.02
	 	Negative Covenants	 	 	61	 
	SECTION 5.03
	 	Reporting Requirements	 	 	71	 
	SECTION 5.04
	 	Financial Covenants	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE VI EVENTS OF DEFAULT	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01
	 	Events of Default	 	 	75	 






 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	 
	SECTION 6.02
	 	Actions in Respect of the Letters of Credit upon Default	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE VII THE Administrative Agent	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01
	 	Authorization and Action	 	 	78	 
	SECTION 7.02
	 	Administrative Agent’s Reliance, Etc	 	 	79	 
	SECTION 7.03
	 	DBTCA and Affiliates	 	 	79	 
	SECTION 7.04
	 	Lender Party Credit Decision	 	 	80	 
	SECTION 7.05
	 	Indemnification	 	 	80	 
	SECTION 7.06
	 	Successor Administrative Agents	 	 	81	 
	 
	 	 	 	 	 	 
	ARTICLE VIII GUARANTY	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.01
	 	Guaranty; Limitation of Liability	 	 	82	 
	SECTION 8.02
	 	Guaranty Absolute	 	 	83	 
	SECTION 8.03
	 	Waivers and Acknowledgments	 	 	84	 
	SECTION 8.04
	 	Subrogation	 	 	85	 
	SECTION 8.05
	 	Guaranty Supplements	 	 	86	 
	SECTION 8.06
	 	Subordination	 	 	86	 
	SECTION 8.07
	 	Continuing Guaranty; Assignments	 	 	87	 
	 
	 	 	 	 	 	 
	ARTICLE IX MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.01
	 	Amendments, Etc.	 	 	87	 
	SECTION 9.02
	 	Notices, Etc.	 	 	88	 
	SECTION 9.03
	 	No Waiver; Remedies	 	 	88	 
	SECTION 9.04
	 	Costs and Expenses	 	 	88	 
	SECTION 9.05
	 	Right of Set-off	 	 	90	 
	SECTION 9.06
	 	Binding Effect	 	 	90	 
	SECTION 9.07
	 	Assignments and Participations	 	 	90	 
	SECTION 9.08
	 	Execution in Counterparts	 	 	93	 
	SECTION 9.09
	 	No Liability of the Issuing Banks	 	 	93	 
	SECTION 9.10
	 	Confidentiality; Patriot Act	 	 	94	 
	SECTION 9.11
	 	Release of Collateral	 	 	94	 
	SECTION 9.12
	 	Jurisdiction, Etc.	 	 	94	 
	SECTION 9.13
	 	Governing Law	 	 	95	 
	SECTION 9.14
	 	Waiver of Jury Trial	 	 	95	 






ii









 






	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	 	 	 	 
	Schedule I
	 	—	 	Commitments, Pro Rata Shares and Applicable Lending Offices
	Schedule II
	 	—	 	Guarantors
	Schedule III
	 	 	 	Existing Letters of Credit
	Schedule IV
	 	 	 	“GAV” Real Property
	Schedule 4.01(b)
	 	—	 	Subsidiaries
	Schedule 4.01(d)
	 	—	 	Authorizations, Approvals, Actions, Notices and Filings
	Schedule 4.01(f)
	 	—	 	Disclosed Litigation
	Schedule 4.01(p)
	 	—	 	Labor Matters
	Schedule 4.01(q)
	 	—	 	Environmental Disclosure
	Schedule 4.01(t)
	 	—	 	Existing Debt
	Schedule 4.01(v)
	 	—	 	Existing Liens
	Schedule 4.01(w)
	 	—	 	Owned Real Property
	Schedule 4.01(x)(i)
	 	—	 	Leased Real Property (Lessee)
	Schedule 4.01(x)(ii)
	 	—	 	Leased Real Property (Lessor)
	Schedule 4.01(y)
	 	—	 	Investments
	Schedule 4.01(z)
	 	—	 	Material Contracts
	Schedule 4.01(aa)
	 	—	 	Intellectual Property
	Schedule 5.01(q)
	 	—	 	Inactive Subsidiaries
	Schedule 5.01(r)(ii)
	 	—	 	Postclosing Account Control Agreement Accounts
	Schedule 5.01(r)(iii)
	 	—	 	UCC-1 Financing Statements to be Terminated
	Schedule 5.02(b)(iii)(F)
	 	—	 	Contingent Obligations






	 	 	 	 	 
	EXHIBITS	 	 	 	 
	Exhibit A
	 	—	 	Form of Note
	Exhibit B-1
	 	—	 	Form of Notice of Borrowing
	Exhibit B-2
	 	—	 	Form of Letter of Credit Request
	Exhibit C
	 	—	 	Form of Assignment and Acceptance
	Exhibit D
	 	—	 	Form of Security Agreement
	Exhibit E
	 	—	 	Form of Guaranty Supplement
	Exhibit F
	 	—	 	Form of Opinion of Special Counsel to the Loan Parties
	Exhibit G
	 	—	 	Form of Compliance Certificate
	Exhibit H
	 	—	 	Form of Departing Lender Consent






iii









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




          SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 7, 2007 among GRUBB & ELLIS
COMPANY, a Delaware corporation (the “Borrower”), the Guarantors (as hereinafter defined), the
Lenders (as hereinafter defined), DEUTSCHE BANK SECURITIES INC., as sole book-running manager and
sole lead arranger (the “Lead Arranger”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as
the initial swing line bank (in such capacity, the “Initial Swing Line Bank”), the initial issuer
of Letters of Credit (as hereinafter defined) (in such capacity, the “Initial Issuing Bank”) and
administrative agent (together with any successors appointed pursuant to Article VII, the
“Administrative Agent”) for the Lender Parties (as hereinafter defined).




PRELIMINARY STATEMENTS




          (1) Pursuant to that certain Amended and Restated Credit Agreement dated as of April 14, 2006,
as amended by (i) that certain First Letter Amendment dated as of June 16, 2006, (ii) that certain
Second Letter Amendment dated as of February 16, 2007, and (iii) that certain Third Letter
Amendment dated as of September 15, 2007 (as so amended, the “Existing Agreement”) among the
Borrower, the guarantors party thereto, the lenders described therein, Deutsche Bank Securities
Inc., as sole book-running manager and sole lead arranger, and Deutsche Bank Trust Company
Americas, as initial issuing bank, swing line bank and administrative agent, such lenders extended
certain commitments to make certain credit facilities available to the Borrower.




          (2) The Borrower, the Administrative Agent, the Lead Arranger, the lenders party to the
Existing Agreement desire to amend and restate the Existing Agreement to (i) extend the Termination
Date (as defined therein) of the credit facility provided thereunder and (ii) make certain other
amendments to the Existing Agreement.




          NOW, THEREFORE, in consideration of the premises set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Existing Agreement to read in its entirety as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     SECTION 1.01 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):



          “Account Control Agreement” has the meaning specified in the Security Agreement.




          “Accounting Change” has the meaning specified in Section 1.03.




          “Acquired Pro Forma EBITDA” means, for any date of determination, for the Measurement Period
most recently ended, the EBITDA attributable during such Measurement Period (a) to any Person, in
the case of an Acquisition of all or substantially all of the Equity Interests of such Person, or
(b) to any assets of a Person, in the case of an Acquisition of all or substantially all of the
assets of such Person, in each case in clauses (a) and (b) above, acquired in connection with a
Permitted Acquisition to the extent that the Administrative Agent, in its reasonable discretion,
deems such EBITDA to be appropriate given all the facts and circumstances surrounding such Permitted
Acquisition, provided,




 









 







that, with respect to any Permitted Acquisition, Borrower
shall be required to provide financial statements in support of Acquired Pro Forma EBITDA only if
(x) the EBITDA attributable to such Permitted Acquisition represents 5% or greater of the total
EBITDA for the trailing 12-month period most recently reported by the Borrower to the
Administrative Agent, and (y) such financial statements are reasonably available to Borrower.




          “Acquisition” means (a) the acquisition of all or substantially all of the assets of another
Person or of a business or division of another Person, (b) the acquisition of all or substantially
all of the Equity Interests of a Person unaffiliated with the Borrower and its Subsidiaries, (c)
the establishment of a joint venture with another Person unaffiliated with the Borrower and its
Subsidiaries or (d) the merger, consolidation or amalgamation with one or more other Persons.




          “Acquisition Debt” means Debt which is (a) a liability on the balance sheet of the Borrower as
determined in accordance with GAAP, incurred by a Loan Party in connection with a Permitted
Acquisition by such Loan Party, (b) unsecured (except to the extent otherwise permitted by Section
5.02(a)), (c) subordinated to Debt incurred hereunder (except to the extent otherwise permitted by
Section 8.06), and (d) in form and substance satisfactory to the Administrative Agent.




          “Adjusted Excess Cash Flow” means, for any period, an amount equal to (a) Consolidated EBITDA
for such period less (b) Consolidated Fixed Charges for such period.




          “Administrative Agent” has the meaning specified in the preamble to this Agreement.




          “Administrative Agent’s Account” means the account of the Administrative Agent maintained at
Deutsche Bank Trust Company Americas, ABA No. 021 001 033, for further credit to the Commercial
Loan Division, 90 Hudson Street, Jersey City, NJ, Account No. 99401268, or such other account
maintained by the Administrative Agent and designated by the Administrative Agent in a written
notice to the Lender Parties and the Borrower.




          “Advance” means a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit
Advance.




          “Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls,
is controlled by or is under common control with such Person or is a director or officer of such
Person. For purposes of this definition, the term “control” (including the terms “controlling”,
“controlled by” and “under common control with”) of a Person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Interests, by contract or otherwise.




          “Agreement” means this Second Amended and Restated Credit Agreement, as amended.




          “Agreement Value” means, for each Hedge Agreement, on any date of determination, an amount
determined by the Administrative Agent equal to: (a) in the case of a Hedge Agreement documented
pursuant to the Master Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the “Master Agreement”), the amount, if any, that would be
payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement,
as if (i) such Hedge Agreement was being terminated early on such date of determination, (ii) such
Loan Party or Subsidiary was the sole “Affected Party”, and (iii) the Administrative Agent was the
sole party determining such payment amount (with the Administrative Agent making such determination
pursuant to the provisions of the form of Master Agreement); (b) in the case of a Hedge Agreement
traded
on an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized
loss on




2









 







such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement determined by the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the mark-to-market value of
such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to the Loan Party
or Subsidiary of a Loan Party party to such Hedge Agreement determined by the Administrative Agent
as the amount, if any, by which (i) the present value of the future cash flows to be paid by such
Loan Party or Subsidiary exceeds (ii) the present value of the future cash flows to be received by
such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective meanings set forth in the above
described Master Agreement.




          “Applicable Lending Office” means, with respect to each Lender Party, such Lender Party’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender Party’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.




          “Applicable Margin” means, at any date of determination, a percentage per annum determined by
reference to the Debt/EBITDA Ratio as set forth below:




	 	 	 	 	 	 	 
	 	 	 	 	Applicable Margin	 	Applicable Margin
	Pricing	 	 	 	for Base Rate	 	for Eurodollar Rate
	Level	 	Debt/EBITDA Ratio	 	Advances	 	Advances
	I
	 	> 2.50:1.00	 	1.50%	 	2.50%
	II
	 	31.50:1.00 but £ 2.50:1.00	 	1.00%	 	2.00%
	III
	 	< 1.50:1.00	 	0.50%	 	1.50%






          The Applicable Margin for each Base Rate Advance and the Applicable Margin for any Interest
Period for all Eurodollar Rate Advances comprising part of the same Borrowing shall each be
determined by reference to the calculation of the Debt/EBITDA Ratio set forth in the Compliance
Certificate of the Chief Financial Officer of the Borrower most recently delivered to the
Administrative Agent in accordance with Section 5.03(b) or (c), as applicable; provided, however,
that (a) the Applicable Margin shall initially be at Pricing Level I on the Effective Date, (b) no
change in the Applicable Margin resulting from the Debt/EBITDA Ratio shall be effective until three
Business Days after the date on which the Administrative Agent receives (x) the financial
statements required to be delivered pursuant to Section 5.03(b) or (c), as the case may be, and (y)
the aforementioned certificate of the Chief Financial Officer of the Borrower demonstrating the
Debt/EBITDA Ratio, and (c) the Applicable Margin shall be at Pricing Level I for so long as the
Borrower has not submitted to the Administrative Agent the information described in clause (a) of
this proviso after same is required to be delivered in accordance with Section 5.03(b) or (c), as
applicable.




          “Appropriate Lender” means, at any time, with respect to (a) the Revolving Credit Facility, a
Lender that has a Commitment with respect to such Facility at such time, (b) the Letter of Credit
Facility, (i) the Issuing Bank and (ii) if the other Revolving Credit Lenders have participated in
Letter of Credit Advances pursuant to Section 2.03(c) that are outstanding at such time, each such
other Revolving Credit Lender and (c) the Swing Line Facility, (i) the Swing Line Bank and (ii) if
the other Revolving Credit Lenders have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such other Revolving Credit Lender.




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




3









 








          “Assigned Revolver Rights and Obligations” has the meaning set forth in Section 2.18(a).




          “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender Party
and an Eligible Assignee and accepted by the Administrative Agent, in accordance with Section 9.07
and in substantially the form of Exhibit C hereto or any other form approved by the Administrative
Agent.




          “Available Amount” of any Letter of Credit means, at any time, the maximum amount available to
be drawn under such Letter of Credit at such time (assuming compliance at such time with all
conditions to drawing).




          “B/C” means B/C Corporate Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary
of the Borrower.




          “Bankruptcy Law” means any proceeding of the type referred to in Section 6.01(f) or Title II,
U.S. Code, or any similar foreign, federal or state law for the relief of debtors.




          “Base Rate” means a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the higher of:





     (a) the rate of interest announced publicly by DBTCA in New York, New York, from time
to time, as its prime lending rate (the “Prime Lending Rate”) (the Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged
to any customer; DBTCA may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate); and




     (b) 1/2 of 1% per annum above the Federal Funds Rate.



          “Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).




          “Beneficial Owner” shall have the meaning set forth in Rules 13(d)-3 and 13(d)-5 under the
Securities Exchange Act of 1934, as amended.




          “Borrower” has the meaning specified in the Preamble to this Agreement.




          “Borrower’s Account” means the account of the Borrower specified by the Borrower in writing to
the Administrative Agent from time to time.




          “Borrower Properties” shall mean those real estate assets owned or leased by any Loan Party or
any of its Restricted Subsidiaries, listed on Schedules 4.01(w) and 4.01(x)(i), respectively.




          “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing.




          “Business Day” means a day of the year on which banks are not required or authorized by law to
close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances,
on which dealings are carried on in the London interbank market.




          “Capital Expenditures” means, for any Person for any period, the sum of, without duplication,
(a) all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries




4









 







during
such period for equipment, fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP,
reflected as additions to property, plant or equipment or other tangible asset on a Consolidated
balance sheet of such Person or have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including Obligations under Capitalized Leases) assumed or incurred
in connection with any such expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount
of such purchase price less the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds, as the case may be. Further, tenant
improvement costs and expenses that would otherwise qualify as Capital Expenditures shall be
excluded from the definition thereof to the extent such costs and expenses are reimbursable by the
landlord.




          “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases.




          “Cash Equivalents” means any of the following, to the extent owned by the Borrower or any of
its Subsidiaries free and clear of all Liens other than Liens created under the Collateral
Documents and having a maturity of not greater than 180 days from the date of acquisition thereof:
(a) readily marketable direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of
the Government of the United States, (b) insured certificates of deposit of or time deposits with
any commercial bank that is a Lender Party or a member of the Federal Reserve System, issues (or
the parent of which issues) commercial paper rated as described in clause (c) below, is organized
under the laws of the United States or any State thereof and has combined capital and surplus of at
least $1 billion, (c) commercial paper issued by any corporation organized under the laws of any
State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s
Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s, a division of
The McGraw-Hill Companies, Inc. (d) Investments, classified in accordance with GAAP as Current
Assets of the Borrower or any of its Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios
of which are limited solely to Investments of the character, quality and maturity described in
clauses (a), (b) and (c) of this definition or (e) Investments in marketable securities traded on
the New York Stock Exchange or any other United States national securities exchange.




          “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time.




          “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.




          “CFC” means an entity that is a controlled foreign corporation under Section 957 of the
Internal Revenue Code.




     “Change of Control” means the occurrence of any of the following: (a) any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended) (excluding members of the Kojaian Group or Anthony Thompson, being the Chairman of the
Board of Directors of Borrower on the Effective Date) shall become, or obtain rights (whether by
means of warrants, options or otherwise) to become, the Beneficial Owner, directly or indirectly,
of the voting power to (i) direct the voting of securities having more than 35% of the voting power
for the election of



5









 




directors of the Borrower or (ii) direct, directly or indirectly, the
management or policies of the Borrower, or (b) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, Continuing Directors shall cease for any
reason to constitute a majority of the board of directors of the Borrower.




          “Collateral” means all “Collateral” and “Mortgaged Property” referred to in the Collateral
Documents and all other property that is or is intended to be subject to any Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.




          “Collateral Account” has the meaning specified in the Security Agreement.




          “Collateral Documents” means the Security Agreement, the Account Control Agreements, the
Commodity Account Control Agreements, the Securities Account Control Agreements, the Mortgages, the
Intellectual Property Security Agreement, each of the collateral documents, instruments and
agreements delivered pursuant to Section 5.01(j), and each other agreement that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.




          “Commission Advance Program” means any program pursuant to which a Loan Party may make
advances to its employees and/or agents against future real estate commissions to be earned by such
employees or agents.




          “Commitment” means a Revolving Credit Commitment, a Swing Line Commitment or a Letter of
Credit Commitment.




          “Commodity Account Control Agreement” has the meaning specified in the Security Agreement.




          “Compliance Certificate” means a certificate duly executed by any of the chairman of the board
of directors, chief executive officer, president or chief financial officer of the Borrower, but in
any event, with respect to financial matters, the president or the chief financial officer of the
Borrower, substantially in the form of Exhibit G hereto, which shall include, inter alia, a
worksheet reflecting that the calculations made thereon have been adjusted to exclude the effects
of the operations of Unrestricted Subsidiaries.




          “Confidential Information” means information that any Loan Party furnishes to the
Administrative Agent or any Lender Party, but does not include any such information that is or
becomes generally available to the public or that is or becomes available to the Administrative
Agent or such Lender Party from a source other than the Loan Parties.




          “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




          “Consolidated EBITDA” means, for any date of determination, for the Measurement Period most
recently ended, the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such
Measurement Period, as determined on a consolidated basis in accordance with GAAP, plus
Acquired Pro Forma EBITDA for such Measurement Period, less the consolidated net income of any
Divested Entity on a pro forma basis for such Measurement Period.




          “Consolidated Fixed Charge Coverage Ratio” means, for any date of determination, for the
Measurement Period most recently ended, the ratio of (a) Consolidated EBITDA for such Measurement
Period to (b) Consolidated Fixed Charges for such Measurement Period; provided, however, that
notwithstanding the limitation set forth in the last sentence of the definition of “Limited




6









 







Purpose
Subsidiary”, (x) for purposes of computing Consolidated EBITDA under the foregoing clause (a),
Consolidated EBITDA relating to Limited Purpose Subsidiary Assets Held For Sale shall be included,
and (y) for purposes of computing Consolidated Fixed Charges under the foregoing clause (b),
Consolidated Fixed Charges relating to Limited Purpose Subsidiary Assets Held For Sale shall be
disregarded only to the extent consisting of Consolidated Interest Expenses funded with and
through interest reserves established in connection with any Debt For Borrowed Money secured by
such Limited Purpose Subsidiary Assets Held For Sale.




          “Consolidated Fixed Charges” means, for any date of determination, for the Measurement Period
most recently ended, the sum (without duplication) of (a) Consolidated Interest Expense for such
Measurement Period, (b) cash income taxes paid by the Borrower or any of its Restricted
Subsidiaries on a Consolidated basis in respect of such Measurement Period, and (c) scheduled
principal payments made during such Measurement Period on account of principal of Debt of the
Borrower or any of its Restricted Subsidiaries (including Capitalized Lease payments but excluding
payments of principal of Debt due at the maturity thereof).




          “Consolidated Interest Expense” means, for any date of determination, for the Measurement
Period most recently ended, the sum of total cash interest expense of the Borrower and its
Restricted Subsidiaries for such Measurement Period with respect to all outstanding Debt of the
Borrower and its Restricted Subsidiaries (including all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers’ acceptance financing and other Debt).




          “Consolidated Interest Income” means, for any date of determination, for the Measurement
Period most recently ended, the sum of all cash interest income of the Borrower and its Restricted
Subsidiaries for such Measurement Period.




          “Consolidated Net Income” means, for any date of determination, for the Measurement Period
most recently ended, the Consolidated net income of the Borrower and its Restricted Subsidiaries
for such Measurement Period determined on a consolidated basis in accordance with GAAP, provided,
that there shall be excluded from such calculation (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries pursuant to a Permitted
Acquisition, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in
which the Borrower or any of its Restricted Subsidiaries has an ownership interest and (c) the
undistributed earnings of any Restricted Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation (other than under any Loan Document) or
Applicable Law applicable to such Subsidiary.




          “Consolidated Net Worth” means, for any date of determination, the Consolidated net worth on
such date of the Borrower and its Restricted Subsidiaries determined in accordance with GAAP.




          “Contingent Obligation” means, with respect to any Person, any Obligation or arrangement of
such Person to guarantee or intended to guarantee any Debt, leases, dividends or other payment
Obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, (a) the direct or indirect
guarantee, endorsement (other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an agreement or (c) any Obligation of
such Person, whether or not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation




7









 







or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.




          “Continuing Directors” means the directors of the Borrower on the Effective Date and
thereafter, all such directors and any additional or replacement directors if, in each case, such
other director’s nomination for election to the board of directors of the Borrower is recommended
by at least a majority of the then Continuing Directors.




          “Conversion”, “Convert” and “Converted” each refer to a conversion of Advances of one Type
into Advances of the other Type pursuant to Section 2.09 or 2.10.




          “Core EBITDA” means EBITDA, exclusive of any amounts which would otherwise comprise EBITDA
arising out of the operation, management or Disposition of, or otherwise attributable to, Limited
Purpose Subsidiary Assets Held For Sale.




          “Cost Basis” means, with respect to any real property, the sum of (a) the acquisition cost of
such real property and (b) the cost of any capital expenditures made (or, solely in the case of
Section 2.06(e), planned to be made) with respect to such real property.




          “Current Assets” of any Person means all assets of such Person that would, in accordance with
GAAP, be classified as current assets of a company conducting a business the same as or similar to
that of such Person, after deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.




          “Customary Carve-Out Agreement” has the meaning specified in the definition of “Non-Recourse
Debt.”




          “DBSI” has the meaning specified in the preamble to this Agreement.




          “DBTCA” has the meaning specified in the preamble to this Agreement.




          “Debt” of any Person means, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of such Person’s
business) to the extent required to be shown on a balance sheet prepared in accordance with GAAP,
the amount of
which shall equal the amount required to be shown on such a balance sheet, (c) all Obligations
of such Person evidenced by notes (other than notes relating to Earnouts to the extent not required
to be shown on a balance sheet prepared in accordance with GAAP), bonds, debentures or other
similar instruments, (d) all Obligations of such Person created or arising from or in connection
with the deposit, transfer or assignment of Equity Interests into trust, (e) all Obligations of
such Person created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are




8









 







limited to repossession or sale of such
property), (f) all Obligations of such Person as lessee under Capitalized Leases, (g) all
Obligations of such Person under acceptance, letter of credit or similar facilities, (h) all
Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any Equity Interests in such Person or any other Person or any warrants, rights or
options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at
the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (i) all Obligations of such Person in respect of Hedge Agreements, valued at the
Agreement Value thereof, (j) all Contingent Obligations and Off-Balance Sheet Obligations of such
Person and (k) all indebtedness and other payment Obligations referred to in clauses (a) through
(j) above of another Person secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness or other payment Obligations, provided, that the
amount of Debt of the type referred to in clauses (j), to the extent such Debt consists of
guarantees, and (k) above will be included within the definition of “Debt” only to the extent of
the amount of the obligations so guaranteed and to the extent of any such Lien, respectively.




          “Debt/EBITDA Ratio” means, at any date of determination, the ratio of (a) Consolidated total
Debt for Borrowed Money of the Borrower and its Restricted Subsidiaries at such date, to (b)
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently completed
Measurement Period.




          “Debt/Purchase Price Ratio” means, at the date of the incurrence of any Debt for Borrowed
Money by any Triple Net Properties Limited Purpose Subsidiary which is described in Section
5.02(b)(v), the ratio of (a) the total Debt for Borrowed Money provided in connection with the
subject transaction, to (b) the total purchase price of the real property subject to such
transaction.




          “Debt for Borrowed Money” of any Person means, at any date of determination, all items that,
in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of
such Person at such date.




          “Default” means any Event of Default or any event that would constitute an Event of Default
but for the passage of time or the requirement that notice be given or both.




          “Default Interest” has the meaning set forth in Section 2.07(b).




          “Defaulted Advance” means, with respect to any Lender Party at any time, the portion of any
Advance required to be made by such Lender Party to the Borrower pursuant to Section 2.01 or 2.02
at or prior to such time that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(e) as of such time. In the event
that a portion of a Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the Defaulted Advance so deemed
made in part.




          “Defaulted Amount” means, with respect to any Lender Party at any time, any amount required to
be paid by such Lender Party to the Administrative Agent or any other Lender Party hereunder or
under any other Loan Document at or prior to such time that has not been so paid as of such time,
including, without limitation, any amount required to be paid by such Lender Party to (a) the Swing
Line Bank pursuant to Section 2.02(b) to purchase a portion of a Swing Line Advance made by the
Swing Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a Letter
of Credit Advance made by the Issuing Bank, (c) the Administrative Agent pursuant to
Section 2.02(e) to reimburse the Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account




9









 







of such Lender Party, (d) any other Lender Party pursuant to
Section 2.13 to purchase any participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to reimburse the Administrative
Agent or the Issuing Bank for such Lender Party’s ratable share of any amount required to be paid
by the Lender Parties to the Administrative Agent or the Issuing Bank as provided therein. In the
event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.




          “Defaulting Lender” means, at any time, any Lender Party that, at such time, (a) owes a
Defaulted Advance or a Defaulted Amount or (b) shall take any action or be the subject of any
action or proceeding of a type described in Section 6.01(f).




          “Disclosed Litigation” has the meaning specified in Section 3.01(e).




          “Disposition” means, with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and “Dispose
of” shall have correlative meanings.




          “Divested Entity” means, for any date of determination, for the Measurement Period most
recently ended, any Person (or division or similar business unit) disposed of by the Borrower or
any Subsidiary during such Measurement Period if, as of the last day of the fiscal quarter
immediately preceding such disposition, the contribution to EBITDA of such Person (or division or
similar business unit) accounted for 5% or more of Consolidated EBITDA for the 12 months preceding
such last day.




          “Dividend/Share Repurchase Limitation” has the meaning specified in Section 5.02(g)(i).




          “Domestic Lending Office” means, with respect to any Lender Party, the office of such Lender
Party specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.




          “Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States of America.




          “Earnouts” means any cash payments (i) made by the Borrower to third party sellers in
consideration for the purchase of assets or stock by the Borrower from such seller and (ii) made
subsequent to the consummation of such purchase.




          “EBITDA” means, for any date of determination, for the Measurement Period most recently ended,
Consolidated Net Income for such Measurement Period plus, without duplication and to
the extent reflected as a charge in the statement of Consolidated Net Income for such
Measurement Period, the sum of (a) total income tax expense, (b) interest expense, amortization or
write-off of debt discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Debt (including the Advances), (c) depreciation expense, (d) amortization
of intangibles (including goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring cash expenses or losses (including, whether or not otherwise includable as a separate
item in the statement of Consolidated Net Income for such Measurement Period, losses on sales of
assets outside of the ordinary course of business) and (f) any other non-cash charges; and minus,
to the extent included in the statement of such




10









 







Consolidated Net Income for such Measurement
Period, the sum of (a) interest income, (b) any extraordinary income or gains (including, whether
or not otherwise includable as a separate item in the statement of Consolidated Net Income for such
Measurement Period, gains on the sales of assets outside of the ordinary course of business) and
(c) any other non-cash income, all as determined in accordance with GAAP. The sale by the Borrower
of its interest in LoopNet, Inc. during the fiscal quarter ending December 31, 2006 is deemed to be
in the ordinary course of business; and, therefore, the gain realized on such sale shall not be
excluded from the computation of EBITDA for the relevant Measurement Periods.




          “Effective Date” has the meaning specified in Section 3.01.




          “Eligible Assignee” means (a) with respect to any Facility (other than the Letter of Credit
Facility), (i) a commercial bank organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000 (provided, that such bank is acting
through a branch or agency located in the country in which it is organized or another country which
is also a member of the OECD); (iii) a Person that is engaged in the business of commercial banking
and that is (A) an Affiliate of a Lender, (B) an Affiliate of a Person of which a Lender is an
Affiliate or (C) a Person of which a Lender is an Affiliate; (iv) an insurance company, mutual fund
or other financial institution organized under the laws of the United States, any state thereof,
any other country which is a member of the OECD or a political subdivision of any such country
which invests in bank loans and has a net worth of $500,000,000; and (v) any fund (other than a
mutual fund) which invests in bank loans and whose assets exceed $100,000,000, and (b) with respect
to the Letter of Credit Facility, a Person that is an Eligible Assignee under subclause (i) or (ii)
of clause (a) of this definition (or any Affiliate of any such Person) and is approved by the
Administrative Agent; provided, however, that (x) neither any Loan Party nor any Affiliate of a
Loan Party shall qualify as an Eligible Assignee under this definition and (y) no Person shall be
an “Eligible Assignee” unless at the time of the proposed assignment to such Person such Person is
exempt from withholding of tax on interest and is able to deliver the documents related thereto
pursuant to Section 2.12(e) of the Credit Agreement.




          “Environmental Action” means any action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability, investigation, proceeding,
consent order or consent agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the
environment, including, without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.




          “Environmental Law” means any Federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the environment, health, safety or
natural resources,
including, without limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.




          “Environmental Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.




          “Equity Interests” means, with respect to any Person, shares of capital stock (common or
preferred) of (or other ownership or profit interests in) such Person, warrants, options or other
rights for the purchase or other acquisition from such Person of shares of capital stock (common or
preferred) of (or




11









 







other ownership or profit interests in) such Person, securities convertible into
or exchangeable for shares of capital stock (common or preferred) of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or other acquisition from
such Person of such shares (or such other interests), and other ownership or profit interests in
such Person (including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of determination.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations promulgated and rulings issued thereunder.




          “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan Party, within the meaning
of Section 414 of the Internal Revenue Code.




          “ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect
to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or
any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan.




          “Escrow Bank” has the meaning specified in Section 2.15(c).




          “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time.




          “Eurodollar Lending Office” means, with respect to any Lender Party, the office of such Lender
Party specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party (or, if no such office is
specified,
its Domestic Lending Office), or such other office of such Lender Party as such Lender Party
may from time to time specify to the Borrower and the Administrative Agent.




          “Eurodollar Rate” means, for any Interest Period for all Eurodollar Rate Advances comprising
part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by
dividing (a) the average of the respective rates per annum (rounded upward to the next whole
multiple of 1/16th of 1%) posted by each of the principal London offices of banks posting rates as
displayed on the Reuters Screen LIBOR01 Page or such other page as may replace such page on such
service for the purpose of displaying the London interbank offered rate of major banks for deposits
in U.S. dollars, at




12









 







approximately 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period for deposits in an amount substantially equal to DBTCA’s Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.




          “Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).




          “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in New York City with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest Period.




          “Events of Default” has the meaning specified in Section 6.01.




          “Existing Agreement” has the meaning specified in the first Preliminary Statement.




          “Existing Agreement Date” means as of April 14, 2007.




          “Existing Debt” means Debt of each Loan Party and its Subsidiaries outstanding immediately
before and after the occurrence of the Effective Date, other than the Facility.




          “Existing Letters of Credit” means the Letters of Credit specified on Schedule III hereto.




          “Extension Date” has the meaning specified in Section 2.17.




          “Facility” means the Revolving Credit Facility, the Swing Line Facility or the Letter of
Credit Facility.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.




          “Fee Letter” means the fee letter dated as of November 2, 2007 between the Borrower and the
Administrative Agent, as amended.




          “Fiscal Year” means a fiscal year of the Borrower and its Consolidated Subsidiaries ending on
December 31 in any calendar year.




          “Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.




13









 





          “GAAP” has the meaning specified in Section 1.03.




          “GEMS” means Grubb & Ellis Management Services, Inc.




          “GERA” means Grubb & Ellis Realty Advisors, Inc.




          “GERA Agreements” means each of (a) that certain Master Agreement for Services dated February
27, 2006 between the Borrower and GERA, (b) that certain Master Agreement for Project Management
Services dated February 27, 2006 between the Borrower and GEMS and (c) that certain Property
Management Agreement dated February 27, 2006 between the Borrower and GEMS, in each case as
amended, amended and restated, supplemented or otherwise modified from time to time to the extent
permitted under the Loan Documents.




          “GERA Property Acquisition” means GERA Property Acquisition LLC, a Subsidiary of the Borrower,




          “GERA Property Acquisition Subsidiaries” means the following wholly-owned Subsidiaries of GERA
Property Acquisition: (i) GERA Abrams Centre LLC, (ii) GERA 6400 Shafer LLC, and (iii) GERA Danbury
Corporate Center LLC.




          “GERA Property Acquisition Subsidiary Existing Financing” means the following first mortgage
loans from Wachovia Bank, N.A., each as more particularly described in the Registration Statement
of Borrower on Form S-4 dated October 17, 2007: (i) that certain loan in the initial principal
amount of $42,500,000 to GERA Abrams Centre LLC and GERA 6400 Shafer LLC, and (ii) that certain
loan in the initial principal amount of $78,000,000 to GERA Danbury Corporate Center LLC.




          “Governmental Authority” means any nation or government, any state, province, city, municipal
entity or other political subdivision thereof, and any governmental, executive, legislative,
judicial, administrative or regulatory agency, department, authority, instrumentality, commission,
board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign.




          “Governmental Authorization” means any authorization, approval, consent, franchise, license,
covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification or registration with, any
Governmental Authority.




          “Guaranteed Obligations” has the meaning specified in Section 8.01.




          “Guarantor Income Threshold” has the meaning specified in Section 5.01(j).




          “Guarantor Income Threshold Excluded Subsidiary” has the meaning specified in Section 5.01(j).




          “Guarantors” means the Subsidiaries of the Borrower listed on Schedule II hereto and each
other Subsidiary of the Borrower that shall be required to execute and deliver a guaranty pursuant
to Section 5.01(j).




          “Guaranty” means the guaranty of the Guarantors set forth in Article VIII together with each
other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as
amended.




          “Guaranty Supplement” has the meaning specified in Section 8.05.




14









 





          “Hazardous Materials” means (a) petroleum or petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon
gas and (b) any other chemicals, materials or substances designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any Environmental Law.




          “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts and other hedging
agreements.




          “Hedge Bank” means any Lender Party or an Affiliate of a Lender Party in its capacity as a
party to a Secured Hedge Agreement.




          “Inactive Subsidiaries” has the meaning set forth in Section 5.01(q)(i).




          “Indemnified Party” has the meaning specified in Section 9.04(b).




          “Initial Issuing Bank” has the meaning specified in the preamble to this Agreement.




          “Initial Lender Parties” means the Initial Issuing Bank, the Initial Lender and the Initial
Swing Line Bank.




          “Initial Lender” means the financial institution listed on the signature pages hereof as the
Initial Lender.




          “Initial Swing Line Bank” has the meaning specified in the preamble to this Agreement.




          “Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA.




          “Intellectual Property Security Agreement” means the intellectual property security agreement
in substantially the form set forth in Exhibit F to the Security Agreement or otherwise in form and
substance satisfactory to the Administrative Agent.




          “Interest Coverage Ratio” means, for any date of determination, for the Measurement Period
most recently ended, the ratio of (a) Consolidated EBITDA to (b)(i) Consolidated Interest Expense
less (ii) Consolidated Interest Income, for such Measurement Period.




          “Interest Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day
of the period selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent
period commencing on the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months, as the Borrower may, upon
notice received by the Administrative Agent not later than 1:00 P.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select; provided, however, that:





     (a) the Borrower may not select any Interest Period with respect to any Eurodollar Rate
Advance under a Facility that ends after any principal repayment installment date for such
Facility unless, after giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest Periods that end on or
prior to such



15









 






principal repayment installment date for such Facility shall be at least equal
to the aggregate principal amount of Advances under such Facility due and payable on or
prior to such date;




     (b) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;




     (c) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day; provided, however, that, if such extension would cause the
last day of such Interest Period to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding Business Day; and




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.



          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder.




          “Investment” in any Person means any loan or advance to such Person, any purchase or other
acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or
a substantial part or all of the business of such Person, any capital contribution to such Person
or any other direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation (or similar transaction) and any arrangement
pursuant to which the investor incurs Debt of the types referred to in clause (j) or (k) of the
definition of “Debt” in respect of such Person.




          “Issuing Bank” means the Initial Issuing Bank and any other Revolving Credit Lender approved
as an Issuing Bank by the Administrative Agent and any Eligible Assignee to which a Letter of
Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as such Revolving
Credit Lender or such Eligible Assignee expressly agrees to perform in accordance with their terms
all of the obligations that by the terms of this Agreement are required to be performed by it as an
Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount
of its Letter of Credit Commitment (which information shall be recorded by the Administrative Agent
in the Register), for so long as such Initial Issuing Bank, Revolving Credit Lender or Eligible
Assignee, as the case may be, shall have a Letter of Credit Commitment.




          “Kojaian Group” means Mr. C. Michael Kojaian and any person or entity who, after the Effective
Date, is deemed to be an Affiliate of Mr. C. Michael Kojaian.




          “L/C Collateral Account” has the meaning specified in the Security Agreement.




          “L/C Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a
Letter of Credit.




          “L/C Related Documents” has the meaning specified in Section 2.04(c)(ii).




          “Lead Arranger” has the meaning specified in the preamble to this Agreement.




16









 





          “Lender Party” means any Lender, the Issuing Bank or the Swing Line Bank.




          “Lenders” means the Initial Lender and each Person that shall become a Lender hereunder
pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall be
a party to this Agreement.




          “Letter of Credit Advance” means an advance made by the Issuing Bank or any Revolving Credit
Lender pursuant to Section 2.03(c).




          “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).




          “Letter of Credit Commitment” means, with respect to the Issuing Bank at any time, the amount
set forth opposite such Issuing Bank’s name on Schedule I hereto under the caption “Letter of
Credit Commitment” or, if such Issuing Bank has entered into one or more Assignment and
Acceptances, set forth for such Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of Credit Commitment”, as such amount
may be reduced at or prior to such time pursuant to Section 2.05.




          “Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the
aggregate amount of the Issuing Bank’s Letter of Credit Commitment at such time and (b) $7,500,000,
as such amount may be reduced at or prior to such time pursuant to Section 2.05.




          “Letter of Credit Request” has the meaning specified in Section 2.03(a).




          “Letters of Credit” has the meaning specified in Section 2.01(c).




          “Lien” means any lien, security interest or other charge or encumbrance of any kind, or any
other type of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or other encumbrance on title
to real property.




          “Limited Joint Venture” means any joint venture (a) in which the Borrower or any of its
Subsidiaries holds any Equity Interest, (b) that is not a Subsidiary of the Borrower or any of its
Subsidiaries and (c) the accounts of which would not appear on the Consolidated financial
statements of the Borrower.




          “Limited Purpose Subsidiary” means (a) a Domestic Subsidiary of the Borrower which is a wholly
owned Subsidiary and (b) any wholly owned Domestic Subsidiary of a Limited Purpose Subsidiary,
provided that, in each case, such Subsidiary satisfies each of the following conditions: (i) the
Limited Purpose Subsidiary is organized solely for the purpose of acquiring (on terms and
conditions satisfactory to the Administrative Agent) and improving (including by way of making
capital expenditures in connection therewith) certain real property more particularly described on
Schedule IV or such other real property as the Administrative Agent may approve in its sole
discretion and (ii) the
purposes of the Limited Purpose Subsidiary are limited to those consistent with or incidental
to the foregoing. Each Limited Purpose Subsidiary shall be a Restricted Subsidiary for all
purposes, except that each of GERA Property Acquisition and the GERA Property Acquisition
Subsidiaries shall be disregarded (that is, deemed to be an Unrestricted Subsidiary solely) for
purposes of determining compliance with the financial covenants set forth in Section 5.04.




          “Limited Purpose Subsidiary Assets Held for Sale” means all real property held for sale by any
Limited Purpose Subsidiary as permitted by Section 5.02(f)(ix).




17









 








          “Liquidity” means, at any date of determination, an amount equal to the same of (a) the
aggregate Unused Revolving Credit Commitments at such time with respect to which all conditions
precedent set forth in Section 3.02 remain satisfied other than delivery of the officer’s
certificate referred to therein, and (b) unrestricted cash and Cash Equivalents of the Borrower and
its Restricted Subsidiaries on hand at such time.




          “Loan Documents” means (a) this Agreement, (b) the Notes, (c) the Guaranties, (d) the
Collateral Documents, (e) the Fee Letter, (f) each Letter of Credit Agreement and (g) each Secured
Hedge Agreement, in each case as amended.




          “Loan Parties” means the Borrower and the Guarantors.




          “Margin Stock” has the meaning specified in Regulation U.




          “Material Adverse Change” means any material adverse change in the business, assets,
properties or financial condition of the Borrower or of the Borrower and its Restricted
Subsidiaries, taken as a whole.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
properties or financial condition of the Borrower or of the Borrower and its Restricted
Subsidiaries, taken as a whole, (b) the rights and remedies of the Administrative Agent or any
Lender Party under any Loan Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document to which it is or is to be a party.




          “Material Contract” means, with respect to any Person, each contract (other than a contract
pursuant to which such Person is engaged to provide brokerage services with regard to a single
client under which a commission or other fee is payable) to which such Person is a party involving
aggregate consideration (excluding (x) reimbursable expenses of such Person and (y) project
management fees payable to such Person the amount of which cannot yet be determined because the
amount of such fees are contingent) payable to or by such Person of $1,000,000 or more in any year.




          “Measurement Period” means, at any date of determination, the most recently completed four
consecutive fiscal quarters of the Borrower ending on or prior to such date, provided that for
purposes of determining compliance with the financial covenants set forth in Section 5.04, until
such time as a full Fiscal Year shall have elapsed after completion of the Merger Transaction, all
items of income and expense of Borrower and NNN Realty Advisors shall be determined on a pro forma
combined basis for Borrower and NNN Realty Advisors on the same basis as the financial projections
dated September 27, 2007 provided to the Administrative Agent on October 9, 2007 as of the first
day of the fiscal period covered thereby.




          “Merger Agreement” means that certain Agreement and Plan of Merger dated as of May 22, 2007
among Borrower, B/C, and NNN Realty Advisors.




          “Merger Transaction” means the reverse merger transaction contemplated by the Merger Agreement
pursuant to which NNN Realty Advisors will be merged with and into B/C with NNN Realty Advisors as
the surviving entity, as more particularly described in the Registration Statement of Borrower on
Form S-4 dated October 17, 2007.




          “Mortgages” means deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold
deeds of trust, if any, in form and substance satisfactory to the Administrative Agent and covering
the Borrower Properties, duly executed by the appropriate Loan Party.




18









 








          “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.




          “Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of
ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least
one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.




          “Net Cash Proceeds” means, (a) with respect to any direct or indirect sale, lease, transfer or
other disposition of any real property of a Limited Purpose Subsidiary, the excess, if any, of (i)
the sum of cash and Cash Equivalents received in connection with such sale, lease, transfer or
other disposition (including any cash or Cash Equivalents received by way of a permitted deferred
payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Non-Recourse Debt that is secured by
such asset and that is required to be repaid in connection with such sale, lease, transfer or other
disposition thereof, (B) the reasonable and customary out-of-pocket costs, fees, commissions,
premiums and expenses incurred by the relevant Limited Purpose Subsidiary, and (C) federal, state,
provincial, foreign and local taxes reasonably estimated (on a Consolidated basis) to be actually
payable within the current or the immediately succeeding tax year as a result of any gain
recognized in connection therewith, and (b) with respect the incurrence of any Non-Recourse Debt by
any Limited Purpose Subsidiary, the excess of (i) the sum of the cash received in connection with
such incurrence over (ii) the out-of-pocket costs, fees, commissions, premiums and expenses
incurred by the Limited Purpose Subsidiary in connection with such incurrence to the extent such
amounts were not deducted in determining the amount referred to in clause (i).




          “New Hire Bonuses” has the meaning specified in Section 5.02(r).




          “NNN Capital Corp.” means NNN Capital Corp., a Delaware corporation, a wholly-owned subsidiary
of NNN Realty Advisors.




          “NNN Realty Advisors” means NNN Realty Advisors, Inc., a Delaware corporation.




          “Non-Recourse Debt” means Debt for Borrowed Money with respect to which recourse for payment
is limited to (a) any building(s) or parcel(s) of real property or any related assets encumbered by
a Lien securing such Debt for Borrowed Money and/or (b) the general credit of the Property-Level
Subsidiary that has incurred such Debt for Borrowed Money, and/or the direct Equity Interests
therein (any such Non-Recourse Debt secured by Equity Interests in any Property-Level Subsidiary,
being a “Non-Recourse Mezzanine Financing”), it being understood that the instruments governing
such Debt may include customary carve-outs to such limited recourse (any such customary carve-outs
or agreements limited to such customary carve-outs, being a “Customary Carve-Out Agreement”) such
as, for example,
personal recourse to the Borrower or any Subsidiary of the Borrower for fraud,
misrepresentation, misapplication or misappropriation of cash, waste, environmental claims, damage
to properties, non-payment of taxes or other liens despite the existence of sufficient cash flow,
interference with the enforcement of loan documents upon maturity or acceleration, voluntary or
involuntary bankruptcy filings, violation of loan document prohibitions against transfer of
properties or ownership interests therein and liabilities and other circumstances customarily
excluded by lenders from exculpation provisions and/or included in separate indemnification and/or
guaranty agreements in non-recourse financings of real estate.




19









 








          “Non-Recourse Mezzanine Financing” has the meaning specified in the definition of
“Non-Recourse Debt”.




          “Note” means a promissory note of the Borrower payable to the order of any Revolving Credit
Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances, Letter of Credit Advances and
Swing Line Advances made by such Lender, as amended.




          “Notice of Borrowing” has the meaning specified in Section 2.02(a).




          “Notice of Swing Line Borrowing” has the meaning specified in Section 2.02(b).




          “NPL” means the National Priorities List under CERCLA.




          “Obligation” means, with respect to any Person, any payment, performance or other obligation
of such Person of any kind, including, without limitation, any liability of such Person on any
claim, whether or not the right of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without limiting the generality of the
foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the obligation to
pay principal, interest, charges, expenses, fees, attorneys’ fees, commissions, including, without
limitation, Letter of Credit commissions, and disbursements, indemnities and other amounts payable
by such Loan Party under any Loan Document and (b) the obligation of such Loan Party to reimburse
any amount in respect of any of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.




          “OECD” means the Organization for Economic Cooperation and Development.




          “Off Balance Sheet Obligation” means, with respect to any Person, without duplication of any
clause within this definition or within the definition of “Debt”, all (a) Obligations of such
Person under any lease which is treated as an operating lease for financial accounting purposes and
a financing lease for tax purposes (i.e., a “synthetic lease”), (b) Obligations of such Person in
respect of transactions entered into by such Person, the proceeds from which would be reflected on
the financial statements of such Person in accordance with GAAP as cash flows from financings at
the time such transaction was entered into (other than as a result of the issuance of Equity
Interests) and (c) Obligations of such Person in respect of other transactions entered into by such
Person that are not otherwise addressed in the definition of “Debt” or in clause (a) or (b) above
that are intended to function primarily as a borrowing of funds (including, without limitation, any
minority interest transactions that function primarily as a borrowing).




          “Other Taxes” has the meaning specified in Section 2.12(b).




          “Participant” has the meaning specified in Section 2.03(c).




          “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended from time to
time.




          “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




20









 





          “Permitted Acquisition” means any Acquisition that complies with each of the following
requirements:





     (a) (i) the Borrower satisfies, and will continue to satisfy, immediately after giving
effect (on a pro forma basis) to such Acquisition and any Debt incurred in connection
therewith, all applicable financial covenants under this Agreement and (ii) the
Administrative Agent shall have approved such Acquisition in writing prior to the
consummation thereof and received no later than 10 days subsequent to such Permitted
Acquisition a pro forma budget of projected income and expenses relating to such Permitted
Acquisition;




     (b) no Default has then occurred and is continuing or would result therefrom; and




     (c) the company being acquired or the joint venture being established is in (or the
assets being acquired are used in) the real estate services business or the real estate
mutual fund business.



          For the avoidance of doubt, the funding obligations of NNN Realty Advisors pursuant to that
certain Membership Interests Purchase Sale Agreement dated November 16, 2007 between NNN Realty
Advisors and Jay P. Leupp, in an aggregate amount not to exceed $20,000,000, shall be deemed to
comprise a “Permitted Acquisition” for all purposes under this Agreement.




          “Permitted Liens” means such of the following as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required to be paid under
Section 5.01(b); (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s
and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing
obligations that (i) are not overdue for a period of more than 30 days and (ii) individually or
together with all other Permitted Liens outstanding on any date of determination do not materially
adversely affect the use of the property to which they relate; (c) pledges or deposits in the
ordinary course of business to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations; (d) deposits to secure the performance of
bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than
bonds related to judgments or litigation), performance bonds and other obligations of a like nature
incurred in the ordinary course of business; (e) Liens securing judgments (or the payment of money)
not constituting a Default under Section 6.01(g) or securing appeal or other surety bonds related
to such judgments; (f) easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes, excluding any such easements, rights of
way or encumbrances securing Debt for Borrowed Money; and (g) Liens securing insurance premium
financing arrangements entered into in the ordinary course of business and permitted under Section
5.02(b)(iii)(G).




          “Person” means an individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.




          “Plan” means a Single Employer Plan or a Multiple Employer Plan.




          “Pledged Debt” has the meaning specified in the Security Agreement.




          “Pledged Shares” has the meaning specified in the Security Agreement.




          “Post Petition Interest” has the meaning specified in Section 8.06.




21









 





          “Preferred Interests” means, with respect to any Person, Equity Interests issued by such
Person that are entitled to a preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person’s property and assets, whether by dividend or upon
liquidation.




          “Property” means any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including Equity Interests.




          “Property-Level Subsidiary” means any direct or indirect Limited Purpose Subsidiary of the
Borrower that holds a direct fee interest in any real property and related assets.




          “Pro Rata Share” or “Revolver Pro Rata Share” of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender’s Revolving Credit Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Revolving
Credit Commitment as in effect immediately prior to such termination) and the denominator of which
is the Revolving Credit Facility at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, the Revolving Credit Facility as in effect immediately prior to
such termination). The initial Pro Rata Share of each Lender is set forth opposite the name of
that Lender in Schedule I annexed hereto under the heading “Revolver Pro Rata Share”; provided that
Schedule I shall be amended and each Pro Rata Share shall be adjusted from time to time to give
effect to the execution of any supplements, amendments or modifications to this Agreement and the
addition or removal of any Lender as provided herein or by assignment pursuant to Section 9.07.




          “Purchasing Revolving Lender” has the meaning specified in Section 2.18(a).




          “Recourse Debt/Core EBITDA Ratio” means, at any date of determination, the ratio of (a)
Consolidated total Debt for Borrowed Money of the Borrower and its Restricted Subsidiaries at such
date (including, without limitation, any Contingent Obligations of the Borrower and its Restricted
Subsidiaries, but excluding Debt for Borrowed Money which is Non-Recourse Debt), to (b) Core EBITDA
of the Borrower and its Restricted Subsidiaries for the most recently completed Measurement Period.




          “Redeemable” means, with respect to any Equity Interests, any such Equity Interests that
(a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the holder.




          “Register” has the meaning specified in Section 9.07(d).




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




          “Required Lenders” means, at any time, Lenders owed or holding at least a majority in interest
of the sum of (a) the aggregate principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such time and (c) the aggregate
Unused Revolving Credit Commitments at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders
at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time, (B) such Lender’s Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such time and (C) the Unused
Revolving Credit Commitment of such Lender at such time. For purposes of this definition, the
aggregate principal amount




22









 







of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to the Issuing Bank and the Available Amount of each Letter of Credit shall
be considered to be owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments.




          “Restricted Investment” shall have the meaning specified in Section 5.02(m).




          “Restricted Payments” shall have the meaning specified in Section 5.02(g).




          “Restricted Subsidiaries” means each Domestic Subsidiary of the Borrower which is a wholly
owned Subsidiary, whether now owned or hereafter acquired, other than those Subsidiaries which (a)
hold no material assets or liabilities and (b) conduct no significant business activities,
provided, that, notwithstanding clauses (a) and (b) above, Restricted Subsidiaries shall not
include those Subsidiaries designated as Unrestricted Subsidiaries on Schedule 4.01(b) or as to
which the Borrower has requested in writing to the Administrative Agent that such Subsidiary not be
categorized as a Restricted Subsidiary and which the Administrative Agent, in its sole and absolute
discretion, has agreed in writing shall not be categorized as a Restricted Subsidiary.




          “Revolver Usage” means, with respect to any Revolving Credit Lender at any time, without
duplication, the sum of (a) the aggregate principal amount of all Revolving Credit Advances, Swing
Line Advances and Letter of Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (b) such Lender’s Pro Rata Share of (i) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (ii) the aggregate principal amount of
all Letter of Credit Advances made by the Issuing Bank pursuant to Section 2.03(c) and outstanding
at such time and (iii) the aggregate principal amount of all Swing Line Advances made by the Swing
Line Bank pursuant to Section 2.03(b) and outstanding at such time.




          “Revolving Credit Advance” has the meaning specified in Section 2.01(a).




          “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Advances of the same Type made by the Revolving Credit Lenders.




          “Revolving Credit Commitment” means, with respect to any Revolving Credit Lender at any time,
the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Revolving
Credit Commitment” or, if such Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender’s “Revolving Credit Commitment”, as such amount may be reduced at or
prior to such time pursuant to Section 2.05.




          “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit
Lenders’ Revolving Credit Commitments at such time.




          “Revolving Credit Lender” means any Lender that has a Revolving Credit Commitment.




          “Secured Hedge Agreement” means any Hedge Agreement required or permitted under Article V that
is entered into by and between the Borrower and any Hedge Bank.




          “Secured Obligations” has the meaning specified in Section 2 of the Security Agreement.




          “Secured Parties” means the Administrative Agent, the Lead Arranger, the Lender Parties and
the Hedge Banks.




23









 





          “Securities Account Control Agreement” has the meaning specified in the Security Agreement.




          “Security Agreement” has the meaning specified in Section 3.01(a)(ii).




          “Selling Revolving Lender” has the meaning specified in Section 2.18(a).




          “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of
ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person
other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of
which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.




          “Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on such
date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.




          “Subordinated Obligations” has the meaning specified in Section 8.06.




          “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person’s other Subsidiaries.




          “Supplemental Collateral Agent” has the meaning specified in Section 7.01(c).




          “Swing Line Advance” means an advance made by (a) the Swing Line Bank pursuant to
Section 2.01(b) or (b) any Revolving Credit Lender pursuant to Section 2.02(b).




          “Swing Line Bank” means the Initial Swing Line Bank and any Eligible Assignee to which the
Swing Line Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such
Eligible Assignee expressly agrees to perform in accordance with their terms all obligations that
by the terms of this Agreement are required to be performed by it as a Swing Line Bank and notifies
the Administrative Agent of its Applicable Lending Office and the amount of its Swing Line
Commitment (which information shall be recorded by the Administrative Agent in the Register), for
so long as such Initial Swing Line Bank or Eligible Assignee, as the case may be, shall have a
Swing Line Commitment.




24









 








          “Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made by the Swing
Line Bank pursuant to Section 2.01(b) or the Revolving Credit Lenders pursuant to Section 2.02(b).




          “Swing Line Commitment” means, with respect to the Swing Line Bank at any time, the amount set
forth opposite the Swing Line Bank’s name on Schedule I hereto under the caption “Swing Line
Commitment” or, if the Swing Line Bank has entered into one or more Assignment and Acceptances, set
forth for the Swing Line Bank in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as the Swing Line Bank’s “Swing Line Commitment”, as such amount may be reduced at
or prior to such time pursuant to Section 2.05.




          “Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the Swing Line
Commitment at such time and (b) $4,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.




          “Taxes” has the meaning specified in Section 2.12(a).




          “Termination Date” means the earlier of December 7, 2010, subject to the extension thereof
pursuant to Section 2.17, and the date of termination in whole of the Revolving Credit Commitments,
the Letter of Credit Commitment and the Swing Line Commitment pursuant to Section 2.05 or 6.01.




          “Triple Net Properties” means Triple Net Properties, LLC, a Virginia limited liability
company, which is a Subsidiary of NNN Realty Advisors.




          “Triple Net Properties Limited Purpose Subsidiaries” means all Limited Purpose Subsidiaries
that are Subsidiaries of Triple Net Properties.




          “Type” refers to the distinction between Advances bearing interest at the Base Rate and
Advances bearing interest at the Eurodollar Rate.




          “Unrestricted Subsidiary” means any Subsidiary that is not a Restricted Subsidiary.




          “Unused Revolving Credit Commitment” means, with respect to any Revolving Credit Lender at any
time, without duplication, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Revolving Credit Advances, Swing Line Advances and
Letter of Credit Advances made by such Lender (in its capacity as a Lender) and outstanding at such
time plus (ii) such Lender’s Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and
(C) the aggregate principal amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.03(b) and outstanding at such time.




          “Voting Interests” means shares of capital stock issued by a corporation, or equivalent Equity
Interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening of such
a contingency.




          “Welfare Plan” means a welfare plan, as defined in Section 3(1) of ERISA, that is maintained
for employees of any Loan Party or in respect of which any Loan Party could have liability.




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          “Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.




     SECTION 1.02 Computation of Time Periods; Other Definitional Provisions. In this
Agreement and the other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding”. References in the Loan Documents to any agreement or
contract “as amended” shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in accordance with its
terms. The term “including” is not limiting and means “including without limitation.”



     SECTION 1.03 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principals in the United States
of America as in effect from time to time set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be in general use by significant segments of the United
States accounting profession, which are applicable to the circumstances of the Borrower as of the
date of determination (“GAAP”), except that for purposes of Section 5.04 (including the accounting
terms used therein and defined herein), GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation of the audited
financial statements of the Borrower in respect of the fiscal year ended June 30, 2007 delivered
pursuant to Section 3.01(a)(viii). If any Accounting Change shall occur and such change results in
a change in the method of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent agree to enter into negotiations in good faith and
in a timely fashion in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Change with the desired result that the criteria for evaluating the Borrower’s
financial condition shall be the same after such Accounting Change as if such Accounting Change had
not been made. Until such time as such an amendment shall have been executed and delivered by the
Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as if such Accounting Change
had not occurred. “Accounting Change” refers to any change in accounting principles required by
the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions), the Securities and Exchange Commission or any other qualified,
authoritative agency or organization.



ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES

AND THE LETTERS OF CREDIT




     SECTION 2.01 The Advances and the Letters of Credit. .



          (a) The Revolving Credit Advances. Each Revolving Credit Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances (each a “Revolving Credit
Advance”) to the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in respect of the Revolving Credit Facility in an amount
for each such Advance not to exceed such Lender’s Unused Revolving Credit Commitment at such time.
Each Revolving Credit Borrowing shall be in an aggregate amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Swing Line Advances or outstanding Letter of Credit
Advances) and shall consist of Revolving Credit Advances made simultaneously by the Revolving
Credit Lenders ratably according to




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their Revolving Credit Commitments. Within the limits of each
Revolving Credit Lender’s Unused Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(a).




          (b) The Swing Line Advances. The Swing Line Bank agrees on the terms and conditions
hereinafter set forth, to make Swing Line Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination Date in respect of the
Revolving Credit Facility (i) in an aggregate amount not to exceed at any time outstanding the
Swing Line Bank’s Swing Line Commitment at such time and (ii) in an amount for each such Swing Line
Borrowing not to exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Swing Line Advance shall be used for the purpose of funding the
payment of principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in an
amount of $1,000,000 or an integral multiple of $100,000 in excess thereof and shall be made as a
Base Rate Advance. Within the limits of the Swing Line Facility and within the limits referred to
in clause (ii) above, the Borrower may borrow under this Section 2.01(b), repay pursuant to
Section 2.04(b) or prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(b).
Immediately upon the making of a Swing Line Advance, each Revolving Credit Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Bank a risk
participation in such Swing Line Advance in an amount equal to the product of such Lender’s Pro
Rata Share times the amount of such Swing Line Advance.




          (c) The Letters of Credit. The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue (or cause its Affiliate that is commercial bank to issue) standby
letters of credit (the “Letters of Credit”) for the account of the Borrower from time to time on
any Business Day during the period from the Effective Date until 60 days before the Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by the Issuing Bank not
to exceed at any time the Letter of Credit Facility at such time, (ii) for all Letters of Credit
issued by such Issuing Bank not to exceed such Issuing Bank’s Letter of Credit Commitment at such
time and (iii) for each such Letter of Credit not to exceed an amount equal to the Unused Revolving
Credit Commitments of the Revolving Credit Lenders at such time. No Letter of Credit shall have an
expiration date later than the earlier of 30 days before the Termination Date and one year after
the date of issuance thereof; provided, however, that the expiration date of any Letter of Credit
may be automatically extended, by its terms, for periods of up to one year but not later than the
30th day before the Termination Date. Within the limits of the Letter of Credit
Facility, and subject to the limitations referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(c) in amounts no less than $250,000 (or such lesser
amount as may be agreed to by the Issuing Bank) for each such Letter of Credit, repay any Letter of
Credit Advances resulting from drawings under Letters of Credit pursuant to Section 2.03(c), and
request the issuance of additional Letters of Credit under this Section 2.01(c), subject to the
foregoing limitations. All Existing Letters of Credit, as listed on Schedule III attached hereto,
shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be
subject to and governed by the terms and conditions of this Agreement.




     SECTION 2.02 Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice thereof by telex or
telecopier. Each such notice of a Borrowing (a “Notice of Borrowing”) in respect of a Eurodollar
Rate Advance shall be given not later than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing, and each Notice of Borrowing in respect of a Base Rate
Advance shall be given not later than 1:00 P.M. (New York City time) on the Business Day
immediately prior to the date of the proposed Borrowing. Each Notice of Borrowing shall be by
telephone, confirmed immediately in writing, or electronic mail (containing the Notice of Borrowing
as an electronic attachment containing a hand-written signature, confirmed immediately by telephone
or telecopier) or telecopier, in substantially the form of



27









 




Exhibit B-1 hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such Borrowing is to be made,
(iii) Type of Advance comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each
such Advance. Each Appropriate Lender shall, before 1:00 P.M. (New York City time) on the date of
such Borrowing, make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s
ratable portion of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the Administrative
Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the Borrower by crediting
the Borrower’s Account; provided, however, that, in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first apply such funds to prepay ratably the aggregate principal amount
of any Swing Line Advances and Letter of Credit Advances outstanding at such time, together with
interest accrued and unpaid thereon to and as of such date.




          (b) (i) Each Swing Line Borrowing shall be made on notice, given not later than 1:00 P.M.
(New York City time) on the date of the proposed Swing Line Borrowing, by the Borrower to the Swing
Line Bank and the Administrative Agent. Each such notice of a Swing Line Borrowing (a “Notice of
Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or electronic mail
(containing the Notice of Borrowing as an electronic attachment containing a hand-written
signature, confirmed immediately by telephone or telecopier) or telecopier, specifying therein the
requested (i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount of the requested Swing Line Advances
available to the Administrative Agent at the Administrative Agent’s Account, in same day funds.
After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower’s Account.




          (ii) The Swing Line Bank may, at any time in its sole and absolute discretion, request on
behalf of the Borrower (and the Borrower hereby irrevocably authorizes the Swing Line Bank to so
request on its behalf) that each Revolving Credit Lender make a Base Rate Advance in an amount
equal
to such Lender’s Pro Rata Share of the amount of Swing Line Advances then outstanding. Such
request shall be deemed to be a Notice of Borrowing for purposes hereof and shall be made in
accordance with the provisions of Section 2.02(a) without regard solely to the minimum amounts
specified therein but subject to the satisfaction of the conditions set forth in Section 3.02. The
Swing Line Bank shall furnish the Borrower with a copy of the applicable Notice of Borrowing
promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender
shall make an amount equal to its Pro Rata Share of the amount specified in such Notice of
Borrowing available for the account of its Applicable Lending Office to the Administrative Agent
for the account of the Swing Line Bank, by deposit to the Administrative Agent’s Account, in same
date funds, not later than 1:00 P.M. (New York City time) on the day specified in such Notice of
Borrowing.




          (iii) If for any reason any Swing Line Advance cannot be refinanced by a Revolving Credit
Borrowing as contemplated by Section 2.02(b)(ii), the request for Base Rate Advances submitted by
the Swing Line Bank as set forth in Section 2.02(b)(ii) shall be deemed to be a request by the
Swing Line Bank that each of the Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Advance and each Revolving Credit Lender’s payment to the Administrative Agent
for the account of the Swing Line Bank pursuant to Section 2.02(b)(ii) shall be deemed payment in
respect of such participation.




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          (iv) If and to the extent that any Revolving Credit Lender shall not have made the amount of
its Pro Rata Share of such Swing Line Advance available to the Administrative Agent in accordance
with the provisions of Section 2.02(b)(ii), such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest thereon, for each day
from the date of the applicable Notice of Borrowing delivered by the Swing Line Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds Rate. Neither the Borrower
nor any other Loan Party will be liable to the Administrative Agent or to any Lender Party for
repayment of such interest charges (if any).




          (v) Each Lender’s obligation to make Advances or to purchase and fund risk participations in
Swing Line Advance pursuant to this Section 2.02(b) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Bank, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence of continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Advances pursuant to this Section 2.02(b) is subject to
satisfaction of the conditions set forth in Section 3.02. No funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Advances, together
with interest as provided herein.




          (c) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for the initial Borrowing hereunder or for any Borrowing if the
aggregate amount of such Borrowing is less than $1,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09 or 2.10
and (ii) the Revolving Credit Advances may not be outstanding as part of more than eight separate
Borrowings.




          (d) Each Notice of Borrowing and each Notice of Swing Line Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Appropriate Lender against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing
the applicable conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such date.




          (e) Unless the Administrative Agent shall have received notice from an Appropriate Lender
prior to the date of any Borrowing under a Facility under which such Lender has a Commitment that
such Lender will not make available to the Administrative Agent such Lender’s ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to the Administrative
Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is repaid or paid to
the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at such
time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender’s Advance as part of such Borrowing for
all purposes.




29









 








          (f) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.




     SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit. (a)
Request for Issuance. Each Letter of Credit shall be issued upon submission by the
Borrower of a request for an issuance of a Letter of Credit (a “Letter of Credit Request”) in the
form of Exhibit B-2 hereto given to the Issuing Bank (with a copy to the Administrative Agent), not
later than 1:00 P.M. (New York City time) on the third Business Day (or such shorter period agreed
to by the Issuing Bank) prior to the proposed date of issuance of such Letter of Credit. Each
Letter of Credit Request shall be by telecopier, confirmed immediately in writing by overnight
courier, specifying therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit,
(D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit. If so required by the Issuing Bank, each Letter of Credit Request shall be accompanied by
the Issuing Bank’s standard form of application and agreement for Letters of Credit (a “Letter of
Credit Agreement”). If the requested form of such Letter of Credit is acceptable to the Issuing
Bank in its sole discretion, the Issuing Bank will, upon the fulfillment of the applicable
conditions set forth in Article III, issue such Letter of Credit. All Letters of Credit shall be
denominated in U.S. dollars and shall be issued on a sight basis only. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement will govern.



          (b) Letter of Credit Reports. Promptly after the issuance or amendment of any Letter
of Credit the Issuing Bank shall notify the Borrower and the Administrative Agent, in writing, of
such issuance or amendment and such notice shall be accompanied by a copy of such issuance or
amendment. Upon receipt of such notice, the Administrative Agent shall promptly notify each
Lender, in writing, of such issuance or amendment and if so requested by a Lender, the
Administrative Agent shall provide such Lender with copies of such issuance or amendment. The
Issuing Bank shall furnish to the Administrative Agent (unless the Issuing Bank shall be the
Administrative Agent) by facsimile on the first Business Day
of each month, a written report summarizing the aggregate daily Available Amounts for Letters
of Credit during the preceding month.




          (c) Letter of Credit Participations; Drawing and Reimbursement. (i)  Immediately upon
the issuance by the Issuing Bank of any Letter of Credit, the Issuing Bank shall be deemed to have
sold and transferred to each Revolving Credit Lender, and each Revolving Credit Lender (in its
capacity under this Section 2.03(c), a “Participant”) shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Bank, without recourse or warranty,
an undivided interest and participation in such Letter of Credit, to the extent of such
Participant’s Pro Rata Share of the Available Amount of such Letter of Credit, each drawing or
payment made thereunder and the obligations of the Borrower under this Agreement with respect
thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Credit Commitments or the Revolving Credit Lenders’ respective Pro Rata Shares pursuant
to Section 9.07, it is hereby agreed that, with respect to all outstanding Letters of Credit and
unpaid drawings relating thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 2.03(c) to reflect the new Pro Rata Shares of the assignor and assignee
Revolving Credit Lenders, as the case may be.




          (ii) In determining whether to pay under any Letter of Credit, the Issuing Bank shall not have
any obligation with respect to the other Revolving Credit Lenders other than to confirm that any
documents required to be delivered under such Letter of Credit appear to have been delivered and
that they appear to substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Issuing Bank under or in connection with
any Letter of Credit




30









 







issued by it shall not create for the Issuing Bank any resulting liability to
the Borrower, any other Loan Party, any Revolving Credit Lender or any other Person unless such
action is taken or omitted to be taken with gross negligence or willful misconduct on the part of
the Issuing Bank (as determined by a court of competent jurisdiction in a final non-appealable
judgment).




          (iii) The payment by the Issuing Bank of a draft drawn under any Letter of Credit shall
constitute for all purposes of this Agreement the making by the Issuing Bank of a Letter of Credit
Advance, which shall be a Base Rate Advance, in the amount of such draft. In the event that the
Issuing Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not
have reimbursed such amount in full to the Issuing Bank pursuant to Section 2.04(c), the Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant
of such failure, and each Participant shall promptly and unconditionally pay to the Administrative
Agent for the account of the Issuing Bank the amount of such Participant’s Pro Rata Share of such
unreimbursed payment in U.S. dollars and in same day funds. Upon such notification by the
Administrative Agent to any Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the Administrative Agent for the account of the Issuing Bank
such Participant’s Pro Rata Share of the amount of such payment in same day funds (x) if notified
prior to 12:00 Noon (New York time) on any Business Day, on such Business Day, and (y) if notified
at or after 12:00 Noon (New York time) on any Business Day, on the following Business Day. If such
Participant shall pay to the Administrative Agent such amount for the account of the Issuing Bank
on any Business Day, such amount so paid in respect of principal shall constitute a Letter of
Credit Advance made by such Participant on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Letter of Credit Advance made by the Issuing Bank shall be
reduced by such amount on such Business Day. If and to the extent such Participant shall not have
so made its Pro Rata Share of the amount of such payment available to the Administrative Agent,
such Participant agrees to pay to the Administrative Agent for the account of the Issuing Bank,
forthwith on demand such amount, together with interest thereon, for each day from such date until
the date such amount is paid to the Administrative Agent at the Federal Funds Rate. The failure of
any Participant to make available to the Administrative Agent for the account of the Issuing Bank
its Pro Rata Share of any payment under any Letter of Credit shall not relieve any other
Participant of its
obligation hereunder to make available to the Administrative Agent for the account of the
Issuing Bank its Pro Rata Share of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any other Participant
to make available to the Administrative Agent such other Participant’s Pro Rata Share of any such
payment.




          (iv) Whenever the Issuing Bank receives a payment of a reimbursement obligation as to which it
has received any payments from the Participants pursuant to clause (iii) above, the Issuing Bank
shall pay to the Administrative Agent for the account of each such Participant that has paid its
Pro Rata Share thereof, in same day funds, an amount equal to such Participant’s share (based upon
the proportionate aggregate amount originally funded by such Participant to the aggregate amount
funded by all Participants) of the principal amount of such reimbursement obligation and interest
thereon accruing after the purchase of the respective participations.




          (v) Upon the request of any Participant, the Issuing Bank shall furnish to such Participant
copies of any standby Letter of Credit issued by it and such other documentation as may reasonably
be requested by such Participant.




     SECTION 2.04 Repayment of Advances. (a) Revolving Credit Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date in respect of the Revolving Credit Facility the aggregate principal amount of
the Revolving Credit Advances then outstanding.



31









 





          (b) Swing Line Advances. The Borrower shall repay to the Administrative Agent for the
account of the Swing Line Bank and each other Revolving Credit Lender that has made a Swing Line
Advance the outstanding principal amount of each Swing Line Advance made by each of them on the
earlier of the maturity date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the requested date of such Borrowing) and the
Termination Date in respect of the Revolving Credit Facility.




          (c) Letter of Credit Advances. (i) The Borrower shall repay to the Administrative
Agent for the account of the Issuing Bank and each other Revolving Credit Lender that has made a
Letter of Credit Advance on the earlier of demand and the Termination Date in respect of the
Revolving Credit Facility the outstanding principal amount of each Letter of Credit Advance made by
each of them.




          (ii) The Obligations of the Borrower under this Agreement, any Letter of Credit Agreement and
any other agreement or instrument relating to any Letter of Credit, and the obligations of the
Participants to make payments to the Administrative Agent for the account of the Issuing Bank in
respect of Letters of Credit, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation, the following
circumstances:





     (A) any lack of validity or enforceability of any Loan Document, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the “L/C Related Documents”);




     (B) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations of the Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;




     (C) the existence of any claim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of a Letter
of Credit (or any Persons for which any such beneficiary or any such transferee may
be acting), any Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated transaction;




     (D) any statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;




     (E) payment by any Issuing Bank under a Letter of Credit against presentation
of a draft, certificate or other document that does not strictly comply with the
terms of such Letter of Credit;




     (F) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to departure from
the Guaranties or any other guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or




     (G) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including, without limitation, any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the Borrower
or a guarantor;



32









 




provided, however, that nothing herein waives the Issuing Bank’s liability with respect to errors,
omissions, interruptions, delays in transmission, dispatch or delivery of any message, payment or
advice relating to any Letter of Credit that has been determined in a final and non-appealable
decision of a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Issuing Bank.




     SECTION 2.05 Termination or Reduction of the Commitments. (a)  Optional. The
Borrower may, upon at least five Business Days’ notice to the Administrative Agent, terminate in
whole or reduce in part the unused portions of the Swing Line Facility and the Letter of Credit
Facility and the Unused Revolving Credit Commitments; provided, however, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $1,000,000 or an integral multiple
of $100,000 in excess thereof and (ii) shall be made ratably among the Appropriate Lenders in
accordance with their Commitments with respect to such Facility.



          (b) Mandatory. (i) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by the amount, if any,
by which the amount of the Letter of Credit Facility exceeds the Revolving Credit Facility after
giving effect to such reduction of the Revolving Credit Facility.




          (ii) The Swing Line Facility shall be permanently reduced from time to time on the date of
each reduction in the Revolving Credit Facility by the amount, if any, by which the amount of the
Swing Line Facility exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.




     SECTION 2.06 Prepayments. (a) Optional. The Borrower may, upon at least three Business Days’ notice to the
Administrative Agent, stating the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount
of the Advances comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal amount prepaid;
provided, however, that each partial prepayment shall be in an aggregate principal amount of (i) in
the case of Base Rate Advances, $1,000,000 or an integral multiple of $500,000 in excess thereof,
(ii) in the case of Eurodollar Rate Advances, $1,000,000 or an integral multiple thereof, and
(iii) in the case of Swing Line Advances, $250,000 or an integral multiple thereof.



          (b) Mandatory Prepayment of the Revolving Credit Advances. (i) The Borrower shall,
on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which
(A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter
of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such
Business Day.




          (ii) The Borrower shall, on each Business Day, pay to the Administrative Agent for deposit in
the L/C Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C
Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.




          (iii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) above shall be
first applied to prepay Letter of Credit Advances then outstanding until such Advances are paid in
full, second applied to prepay Swing Line Advances then outstanding until such Advances are paid in
full, third applied to prepay Revolving Credit Advances then outstanding comprising part of the
same



33









 




Borrowings until such Advances are paid in full and fourth deposited in the L/C Collateral
Account to cash collateralize 100% of the Available Amount of the Letters of Credit then
outstanding. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C
Collateral Account, such funds shall be applied to reimburse the Issuing Bank or Revolving Credit
Lenders, as applicable.




          (c) Change of Control Prepayment. The Borrower shall, on the date of any Change of
Control, prepay in full the aggregate principal amount of the Facilities and deposit in the L/C
Collateral Account an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding.




          (d) Payments with Interest. All prepayments under subsections (b), (c) and (d) of
this Section 2.06 shall be made together with (i) accrued interest to the date of such prepayment
on the principal amount prepaid, and (ii) if any payment of a Eurodollar Rate Advance shall be made
other than on the last day of an Interest Period therefor, any amounts owing pursuant to Section
9.04(c).




          (e) Other Mandatory Prepayment Events. (i) In the event that the sale contemplated
by Section 5.02(e)(v) is not consummated on or before September 30, 2008, the Borrower shall (a) on
or before the 40th day following the end of each fiscal quarter, prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings in an amount equal to the
amount of Adjusted Excess Cash Flow for such calendar quarter and (b) upon the consummation of the
sale of the real property (whether direct or indirect) held by any Limited Purpose Subsidiary,
prepay Advances in a principal amount equal to 100% of the Net Cash Proceeds of such sale.




          (ii) Upon the consummation of the sale of the real property (whether direct or indirect)
contemplated by Section 5.02(e)(v)(A), prepay Advances in a principal amount equal to 100% of the
Net Cash Proceeds of such sale.




          (iii) Each such prepayment under this Section 2.06(e) shall be applied ratably to the
Revolving Credit Facility as set forth in Section 2.06(b)(iii) above.




     SECTION 2.07 Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following rates per annum:




     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of the Base Rate in effect from time
to time plus the Applicable Margin, payable in arrears monthly on the first day of each
month during such periods and on the date such Base Rate Advance shall be Converted or paid
in full.




     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of the Eurodollar Rate for such Interest Period for such Advance
plus the Applicable Margin, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require
that the Borrower pay interest (“Default Interest”) on (i) the unpaid principal amount of each
Advance owing to each Lender Party, payable in arrears on the dates referred to in clause (i) or
(ii) of Section 2.07(a), as applicable, and on demand, at a rate per annum equal at all times to 2%
per annum above the rate per



34









 




annum required to be paid on such Advance pursuant to clause (i) or
(ii) of Section 2.07(a), as applicable, and (ii) to the fullest extent permitted by applicable law,
the amount of any interest, fee or other expense reimbursement payable under this Agreement or any
other Loan Document to the Administrative Agent or any Lender Party that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and, in all other cases, on Base Rate Advances pursuant to clause (i) of Section
2.07(a); provided, however, that following the acceleration of the Advances, or the giving of
notice by the Administrative Agent to accelerate the Advances, pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously required by the
Administrative Agent.




          (c) Notice of Interest Period and Interest Rate. Promptly after receipt of a Notice
of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.09 or a
notice of selection of an Interest Period pursuant to the terms of the definition of “Interest
Period”, the Administrative Agent shall give notice to the Borrower and each Appropriate Lender of
the applicable Interest Period and the applicable interest rate determined by the Administrative
Agent for purposes of clause (a)(i) or (a)(ii) above.




     SECTION 2.08 Fees. (a) Unused Commitment Fees. The Borrower shall pay to the Administrative Agent
for the account of the Lenders the following unused commitment fees, from the date hereof in the
case of each Initial Lender and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender, in each case until the
Termination Date, payable in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 2007, and on the Termination Date in respect of the applicable
Facility: (i) for each such quarter during which the average daily Revolver Usage of all Revolving
Credit Lenders is less than fifty percent (50%) of the aggregate of all Revolving Credit
Commitments, an unused revolving commitment fee at the rate of 0.40% per annum on the sum of the
average daily Unused Revolving Credit Commitment of each Appropriate Lender plus such Appropriate
Lender’s Pro Rata Share of the average daily outstanding Swing Line Advances during such quarter,
and (ii) for each such quarter during which the average daily Revolver Usage of all Revolving
Credit Lenders is greater than or equal to fifty percent (50%) of the aggregate of all Revolving
Credit Commitments, an unused revolving commitment fee at the rate of 0.25% per annum on the sum of
the average daily Unused Revolving Credit Commitment of each Appropriate Lender plus such
Appropriate Lender’s Pro Rata Share of the average daily outstanding Swing Line Advances during
such quarter; provided, however, that any unused commitment fee accrued with respect to any of the
Commitments of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such
Lender shall be a Defaulting Lender except to the extent that such unused commitment fee shall
otherwise have been due and payable by the Borrower prior to such time; and provided further that
no unused commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender.



          (b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender a commission, payable quarterly in arrears on
the last day of each March, June, September and December, commencing December 31, 2007, and on the
Termination Date, on such Revolving Credit Lender’s Pro Rata Share of the daily aggregate Available
Amount during such quarter of all Letters of Credit outstanding from time to time at a rate per
annum equal to the Applicable Margin for Eurodollar Rate Advances in effect from time to time.
Upon the occurrence and during the continuance of any Event of Default, the amount of commission
payable by the Borrower under this clause (b)(i) shall be increased by 2% per annum.




35









 








          (ii) The Borrower shall pay to the Issuing Bank, for its own account, a facing fee in respect
of each Letter of Credit issued by it for each Letter of Credit issued by the Issuing Bank, in an
amount equal to 0.125% of the Available Amount of such Letter of Credit, provided that in no event
shall the annual facing fee in respect of any Letter of Credit be less than $500.00. Facing fees
shall be due and payable quarterly in arrears on the last day of each March, June, September and
December, commencing December 31, 2007. In addition, the Borrower shall pay to the Issuing Bank,
for its own account, the Issuing Bank’s standard charges with respect to the issuance of, amendment
to, payment under and transfer of Letters of Credit and such other fees related to Letters of
Credit including but not limited to postage, courier, electronic mail and legal expenses.




          (c) Fees to the Administrative Agent. The Borrower shall pay to the Administrative
Agent for its own account such fees as may from time to time be agreed between the Borrower and the
Administrative Agent.




     SECTION 2.09 Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 1:00 P.M. (New York City
time) on the third Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.07 and 2.10, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into Advances of the
other Type; provided, however, that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate
Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount
not less than the minimum amount specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c) and each Conversion of
Advances comprising part of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility. Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion,
(ii) the Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate Advances,
the duration of the initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.



          (b) Mandatory. (i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $1,000,000, such Advances shall automatically Convert into Base Rate
Advances.




          (ii) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate Advance.




          (iii) Upon the occurrence and during the continuance of any Default, (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.




     SECTION 2.10 Increased Costs, Etc. (a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing
or maintaining or participating in Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances (excluding, for



36









 




purposes of this Section 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern) and
(y) changes in the basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.




          (b) If any Lender Party determines that compliance with any law or regulation or any guideline
or request from any central bank or other governmental authority (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the amount of such capital
is increased by or based upon the existence of such Lender Party’s commitment to lend or to issue
or participate in Letters of Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent obligations),
then, upon demand by such Lender Party or such corporation (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such
Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the existence of such
Lender Party’s commitment to lend or to issue or participate in Letters of Credit hereunder or to
the issuance or maintenance of or participation in any Letters of Credit. A certificate as to such
amounts submitted to the Borrower by such Lender Party shall be conclusive and binding for all
purposes, absent manifest error.




          (c) If, with respect to any Eurodollar Rate Advances under any Facility, Lenders owed at least
50% of the then aggregate unpaid principal amount thereof notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the Appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under such Facility will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such
Lenders have determined that the circumstances causing such suspension no longer exist.




          (d) Notwithstanding any other provision of this Agreement, if the introduction of or any
change in or in the interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and
demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each
Eurodollar Rate Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such Lender has determined
that the circumstances causing such suspension no longer exist; provided, however, that, before
making any such demand, such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or to continue to




37









 







fund or maintain Eurodollar Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.




     SECTION 2.11 Payments and Computations. (a) The Borrower shall make each payment
hereunder and under the Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in Section 2.15), not later than 1:00 P.M. (New York City time) on the day when
due in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day
funds, with payments being received by the Administrative Agent after such time being deemed to
have been received on the next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, unused commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the Borrower is in
respect of any Obligation then payable hereunder to one Lender Party, to such Lender Party for the
account of its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.



          (b) The Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in the case of a
Lender, under the Note held by such Lender, to charge from time to time, to the fullest extent
permitted by law, against any or all of the Borrower’s accounts with such Lender Party or such
Affiliate any amount so due.




          (c) If the Administrative Agent receives funds for application to the Obligations under the
Loan Documents under circumstances for which the Loan Documents do not specify the Advances or the
manner in which such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender Party ratably in accordance with the
amount of the Obligations then payable to such Lender Party, in repayment or prepayment of such of
the outstanding Advances or other Obligations owed to such Lender Party, and for application to
such principal installments, as the Administrative Agent shall direct.




          (d) All computations of interest and of fees and Letter of Credit commissions shall be made by
the Administrative Agent on the basis of a year of 360 days (except that with respect to Base Rate
Advances such computations shall be made by the Administrative Agent on the basis of a year of 365
or 366 days, as the case may be), in all cases for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.




          (e) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment or letter of credit fees or commissions, as the case may be; provided, however, that, if
such extension would cause any payment to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.




38









 








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




     SECTION 2.12 Taxes. (a) Any and all payments by any Loan Party to or for the account of any Lender Party or
the Administrative Agent hereunder or under the Notes or any other Loan Document shall be made, in
accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free
and clear of and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender Party and the Administrative Agent, taxes that are imposed on its overall net
income by the United States and taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or the Administrative Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are imposed on its overall
net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party’s Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under the Notes being hereinafter referred to as “Taxes”). If any Loan
Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder
or under any Note or any other Loan Document to any Lender Party or the Administrative Agent,
(i) the sum payable by the Borrower shall be increased as may be necessary so that after such Loan
Party and the Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party or the
Administrative Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make all such deductions and
(iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.



          (b) In addition, a Loan Party shall pay any present or future stamp, documentary, excise,
property, intangible, mortgage recording or similar taxes, charges or levies that arise from any
payment made by such Loan Party hereunder or under any Notes or any other Loan Documents or from
the execution, delivery or registration of, performance under, or otherwise with respect to, this
Agreement, the Notes or the other Loan Documents (hereinafter referred to as “Other Taxes”).




          (c) The Loan Parties shall indemnify each Lender Party and the Administrative Agent for and
hold them harmless against the full amount of Taxes and Other Taxes, and for the full amount of
taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by such Lender Party or the Administrative Agent (as the case may
be) and any liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or the Administrative Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a
certified copy of a receipt evidencing such payment, to the extent such a receipt is issued
therefor, or




39









 







other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or the other Loan
Documents by or on behalf of a Loan Party through an account or branch outside the United States or
by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party
determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of subsections (d) and (e) of this Section 2.12, the terms “United States” and “United
States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code.




          (e) Each Lender Party organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of this Agreement in the case of each
Initial Lender Party and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as
reasonably requested in writing by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service Forms W-8BEN or W-8EC1, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from
or entitled to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes or any other Loan Document. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided, however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a Lender Party becomes a party to
this Agreement, the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the date hereof by
Internal Revenue Service Form W-8BEN or W-8EC1, that the applicable Lender Party reasonably
considers to be confidential, such Lender Party shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential information.




          (f) For any period with respect to which a Lender Party has failed to provide the Borrower
with the appropriate form, certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document originally was required to
be provided or if such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) of this Section 2.12 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form, certificate or other document required hereunder, the
Loan Parties shall take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.




     SECTION 2.13 Sharing of Payments, Etc. If any Lender Party shall obtain at any time
any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, other than as a result of an assignment pursuant to Section 9.07) (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes and the other Loan
Documents at such time in excess



40









 




of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lender Parties hereunder and under the Notes and
the other Loan Documents at such time) of payments on account of the Obligations due and payable to
all Lender Parties hereunder and under the Notes at such time obtained by all the Lender Parties at
such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes and the other Loan Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes and the other Loan Documents at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the
Notes at such time obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such
other Lender Party shall repay to the purchasing Lender Party the purchase price to the extent of
such Lender Party’s ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties) of such recovery
together with an amount equal to such Lender Party’s ratable share (according to the proportion of
(i) the amount of such other Lender Party’s required repayment to (ii) the total amount so
recovered from the purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered, provided, further that, so
long as the Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an interest or
participating interest from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right of set-off) with
respect to such interest or participating interest, as the case may be, as fully as if such Lender
Party were the direct creditor of the Borrower in the amount of such interest or participating
interest, as the case may be.




     SECTION 2.14 Use of Proceeds. The proceeds of the Revolving Credit Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that it shall use such
proceeds and Letters of Credit) solely (u) to finance Investments permitted under Section
5.02(f)(xi), (v) to finance Permitted Acquisitions by the Borrower or its Restricted Subsidiaries,
(w) to provide working capital for the Borrower and its Restricted Subsidiaries, (x) to finance
acquisitions by the Borrower or its Restricted Subsidiaries, (y) to finance, from and after the
date hereof, the repurchase or exchange by the Borrower of Equity Interests and related payments
permitted pursuant to Section 5.02(g)(iv) and (z) for other general corporate purposes.



     SECTION 2.15 Defaulting Lenders. (a)  In the event that, at any one time, (i) any
Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or
under any other Loan Document to or for the account of such Defaulting Lender, then the Borrower
may, so long as no Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the Obligation of the Borrower to make
such payment to or for the account of such Defaulting Lender against the obligation of such
Defaulting Lender to make such Defaulted Advance. In the event that, on any date, the Borrower
shall so set off and otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made on the date of
such setoff under the Facility pursuant to which such Defaulted Advance was originally



41









 




required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for all purposes of
this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed to
be made pursuant to this subsection (a). The Borrower shall notify the Administrative Agent at any
time the Borrower exercises its right of set-off pursuant to this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted Advance required to be
made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of such
Defaulted Advance pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant
to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b)
or (c) of this Section 2.15.




          (b) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender,
(ii) such Defaulting Lender shall owe a Defaulted Amount to the Administrative Agent or any of the
other Lender Parties and (iii) the Borrower shall make any payment hereunder or under any other
Loan Document to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender Parties and to the
fullest extent permitted by applicable law, apply at such time the amount so paid by the Borrower
to or for the account of such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this Agreement and the
other Loan Documents payment, to such extent, of such Defaulted Amount on such date. Any such
amount so applied by the Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in accordance with
the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent
and such other Lender Parties and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent
and such other Lender Parties, in the following order of priority:





     (i) first, to the Administrative Agent for any Defaulted Amounts then owing to them, in
their capacities as such, ratably in accordance with such respective Defaulted Amounts then
owing to the Administrative Agent;




     (ii) second, to the Issuing Bank and the Swing Line Bank for any Defaulted Amounts then
owing to them, in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Bank and the Swing Line Bank; and




     (iii) third, to any other Lender Parties for any Defaulted Amounts then owing to such
other Lender Parties, ratably in accordance with such respective Defaulted Amounts then
owing to such other Lender Parties.


Any portion of such amount paid by the Borrower for the account of such Defaulting Lender
remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this
subsection (b), shall be applied by the Administrative Agent as specified in subsection (c) of this
Section 2.15.




          (c) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender,
(ii) such Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the
Borrower, the Administrative Agent or any other Lender Party shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or the Administrative Agent or such other Lender Party shall pay such
amount to the




42









 








Administrative Agent to be held by the Administrative Agent, to the fullest extent
permitted by applicable law, in escrow or the Administrative Agent shall, to the fullest extent
permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by
the Administrative Agent in escrow under this subsection (c) shall be deposited by the
Administrative Agent in an account with a bank (the “Escrow Bank”) selected by the Administrative
Agent, in the name and under the control of the Administrative Agent, but subject to the provisions
of this subsection (c). The terms applicable to such account, including the rate of interest
payable with respect to the credit balance of such account from time to time,
shall be the Escrow Bank’s standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the Administrative Agent
in escrow under, and applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time to the extent
necessary to make any Advances required to be made by such Defaulting Lender and to pay any amount
payable by such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or amounts are required
to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make
and pay all such Advances and amounts required to be made or paid at such time, in the following
order of priority:





     (i) first, to the Administrative Agent for any amounts then due and payable by such
Defaulting Lender to them hereunder, in their capacities as such, ratably in accordance with
such respective amounts then due and payable to the Administrative Agent;




     (ii) second, to the Issuing Banks and the Swing Line Bank for any amounts then due and
payable to them hereunder, in their capacities as such, by such Defaulting Lender, ratably
in accordance with such respective amounts then due and payable to the Issuing Banks and the
Swing Line Bank;




     (iii) third, to any other Lender Parties for any amount then due and payable by such
Defaulting Lender to such other Lender Parties hereunder, ratably in accordance with such
respective amounts then due and payable to such other Lender Parties; and




     (iv) fourth, to the Borrower for any Advance then required to be made by such
Defaulting Lender pursuant to a Commitment of such Defaulting Lender.


In the event that any Lender Party that is a Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect
to such Lender Party shall be distributed by the Administrative Agent to such Lender Party and
applied by such Lender Party to the Obligations owing to such Lender Party at such time under this
Agreement and the other Loan Documents ratably in accordance with the respective amounts of such
Obligations outstanding at such time.




          (d) The rights and remedies against a Defaulting Lender under this Section 2.15 are in
addition to other rights and remedies that the Borrower may have against such Defaulting Lender
with respect to any Defaulted Advance and that the Administrative Agent or any Lender Party may
have against such Defaulting Lender with respect to any Defaulted Amount.




     SECTION 2.16 Evidence of Debt. (a) Each Lender Party shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender Party from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a copy of such notice to
the Administrative



43









 





Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender Party to evidence (whether for purposes of pledge,
enforcement or otherwise) the Advances owing to, or to be made by, such Lender Party, the Borrower
shall promptly execute and deliver to such Lender Party, with a copy to the Administrative Agent, a
Note, in substantially the form of Exhibit A hereto, payable to the order of such Lender Party in a
principal amount equal to the Revolving Credit Commitment of such
Lender Party. All references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.




          (b) The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall
include a control account, and a subsidiary account for each Lender Party, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto,
(ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from the Borrower to each
Lender Party hereunder, and (iv) the amount of any sum received by the Administrative Agent from
the Borrower hereunder and each Lender Party’s share thereof.




          (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender Party in its account or accounts pursuant to subsection
(a) above, shall be prima facie evidence of the amount of principal and interest due and payable or
to become due and payable from the Borrower to, in the case of the Register, each Lender Party and,
in the case of such account or accounts, such Lender Party, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such Lender Party to make
an entry, or any finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this Agreement.




     SECTION 2.17 Extension of Termination Date. (a) At least 30 days and no sooner than 60
days prior to the Termination Date, the Borrower, by written notice to the Administrative Agent,
may request, with respect to the Commitments then outstanding, a single one-year extension of the
Termination Date. The Administrative Agent shall promptly notify each Lender of such request, and
the Termination Date in effect at such time shall, effective as at the Termination Date (the
“Extension Date”) and subject to the conditions set forth in this Section 2.17, be extended for an
additional one year period, provided, that (a) on the Extension Date, the following statements
shall be true in all material respects and the Administrative Agent shall have received for the
account of each Lender Party a certificate signed by a duly authorized officer of the Borrower,
dated the Extension Date, stating that: (x) the representations and warranties contained in the
Loan Documents are true and correct on and as of the Extension Date, and (y) no Default has
occurred and is continuing or would result from such extension. In the event that an extension is
effected pursuant to this Section 2.17, the aggregate principal amount of all Advances shall be
repaid in full ratably to the Lenders on the Termination Date as so extended. As of the Extension
Date, any and all references in this Agreement, the Notes, if any, or any of the other Loan
Documents to the “Termination Date” shall refer to the Termination Date as so extended.



          (b) The Borrower shall pay to the Administrative Agent for the account of the Lenders an
extension fee in an amount equal to 0.25% of the total Commitments then outstanding, payable on the
Extension Date.




     SECTION 2.18 Reallocation of Lender Pro Rata Shares. The Revolving Credit Advances
made under the Existing Agreement shall be deemed to be made under this Agreement on the date
hereof, without executing any other documentation, and shall be reallocated as follows:


          (a) On
the Effective Date, each Lender that will have a greater Revolver Pro Rata Share upon the Effective
Date than its Pro Rata Share (under and as defined in the Existing Agreement) immediately prior to
the Effective Date



44









 




(including any New Lender with a Revolving Credit Commitment) (each, a
“Purchasing Revolving Lender”), without executing an Assignment and
Acceptance, shall be deemed to have purchased assignments pro rata from each Lender that will
have a smaller Revolver Pro Rata Share upon the Effective Date than its Pro Rata Share (under and
as defined in the Existing Agreement) immediately prior to the Effective Date (each, a “Selling
Revolving Lender”) in all such Selling Revolving Lenders’ rights and obligations under this
Agreement and the other Loan Documents as a Lender with respect to the Revolving Credit Commitments
(collectively, the “Assigned Revolver Rights and Obligations”) so that, after giving effect to such
assignments, each Lender shall have its respective Revolver Pro Rata Share as set forth in
Schedule I. Each such purchase hereunder shall be at par for a purchase price equal to the
principal amount of the loans and without recourse, representation or warranty, except that each
Selling Revolving Lender shall be deemed to represent and warrant to each Purchasing Revolving
Lender that the Assigned Revolver Rights and Obligations of such Selling Revolving Lender are not
subject to any Liens created by that Selling Revolving Lender.




          (b) The Administrative Agent shall calculate the net amount to be paid or received by each
Lender in connection with the assignments effected hereunder on the Effective Date. Each Lender
required to make a payment pursuant to this Section shall make the net amount of its required
payment available to the Administrative Agent, in same day funds, at the office of the
Administrative Agent not later than 12:00 Noon (New York time) on the Effective Date. The
Administrative Agent shall distribute on the Effective Date the proceeds of such amounts to the
Lenders entitled to receive payments pursuant to this Section, pro rata in proportion to the amount
each such Lender is entitled to receive at the primary address set forth in Schedule I or
at such other address as such Lender may request in writing to the Administrative Agent.




ARTICLE III




CONDITIONS OF LENDING AND

ISSUANCES OF LETTERS OF CREDIT




     SECTION 3.01 Conditions Precedent . The obligation of the Administrative Agent and
the Lead Arranger to enter into this Agreement, and the obligation of each Lender to make an
Advance or of the Issuing Bank to issue a Letter of Credit is subject to the satisfaction of the
following conditions precedent before or concurrently with the date hereof (the “Effective Date”):




     (a) The Administrative Agent and the Lead Arranger shall have received on or before the
Effective Date the following, each dated such day (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent and the Lead Arranger (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender Party:




     (i) The Notes payable to the order of the Lenders to the extent requested by
the Lenders pursuant to the terms of Section 2.16.




     (ii) A second amended and restated security agreement in substantially the form
of Exhibit D hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each case as amended,
the “Security Agreement”), duly executed by each Loan Party, together with:




     (A) certificates representing the Pledged Shares referred to therein
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,



45









 






     (B) proper financing statements in form appropriate for filing under
the Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the Security
Agreement, covering the Collateral described in the Security Agreement,




     (C) the Intellectual Property Security Agreement duly executed by each
Loan Party,




     (D) evidence of the completion of all other recordings and filings of
or with respect to the Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and protect the security
interest created thereunder,




     (E) evidence of the insurance required by the terms of the Security
Agreement, and




     (F) evidence that all other action that the Administrative Agent may
deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security Agreement
has been taken (including, without limitation, receipt of duly executed
payoff letters and UCC-3 termination statements).




     (iii) Certified copies of the resolutions of the Board of Directors of each
Loan Party approving each Loan Document to which it is or is to be a party and the
transactions contemplated thereby, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and consents, if
any, with respect to each Loan Document to which it is or is to be a party and the
transactions contemplated thereby.




     (iv) A copy of a certificate of the Secretary of State of the jurisdiction of
incorporation of each Loan Party, dated reasonably near the Effective Date
certifying that (1) such Loan Party has paid all franchise taxes to the date of such
certificate (except to the extent such Loan Party will provide evidence that all
franchise taxes have been paid after the Effective Date pursuant to Section 5.01(r))
and (2) such Loan Party is duly incorporated and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its incorporation.




     (v) A certificate of each Loan Party, signed on behalf of such Loan Party by
its Chief Financial Officer or its Chief Executive Officer and its Secretary or any
Assistant Secretary, dated as of the Effective Date (the statements made in which
certificate shall be true on and as of the Effective Date), certifying as to
(A) amendments to the charter of such Loan Party, if any, since the Existing
Agreement Date (and providing certified copies of any such amendments),
(B) amendments to the bylaws of such Loan Party, if any, since the Existing
Agreement Date (providing certified copies of any such amendments), (C) the due
incorporation and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or liquidation of such Loan Party,
(D) the truth of the representations and warranties contained in the Loan Documents
as though made on and as of the Effective Date and (E) the absence of any



46









 







event occurring and continuing, on or after the Existing Agreement Date, that
constitutes a Default.




     (vi) A certificate of the Secretary or an Assistant Secretary of each Loan
Party certifying the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.




     (vii) Certificates, in form and substance satisfactory to the Lender Parties,
attesting to the Solvency of each Loan Party from its Chief Financial Officer or its
Chief Executive Officer.




     (viii) Such financial, business and other information regarding each Loan Party
and its Subsidiaries as the Lender Parties shall have requested, including, without
limitation, information as to possible contingent liabilities, tax matters,
environmental matters, obligations under Plans, Multiemployer Plans and Welfare
Plans, collective bargaining agreements and other arrangements with employees,
audited annual financial statements dated June 30, 2007, interim financial
statements dated the end of the most recent fiscal quarter for which financial
statements are available (or, in the event the Lender Parties’ due diligence review
reveals material changes since such financial statements, as of a later date within
45 days of the day of the Effective Date), and a budget (which shall include balance
sheets, income statements and cash flow statements) on a quarterly basis for the
first year following the day of the Effective Date and on an annual basis for each
year thereafter until the Termination Date.




     (ix) Evidence of insurance naming the Administrative Agent as additional
insured and loss payee with such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as is satisfactory to the
Lender Parties, including, without limitation, business interruption insurance.




     (x) A Notice of Borrowing or Letter of Credit Request.




     (xi) A favorable opinion of Zukerman Gore & Brandeis, LLP, special counsel for
the Loan Parties, in substantially the form of Exhibit F hereto and as to such other
matters as any Lender Party through the Administrative Agent may reasonably request.




     (xii) Departing Lender Consents, substantially in the form of Exhibit H hereto,
from each of KeyBank National Association and National City Bank of the Midwest.




     (b) The Lender Parties shall be satisfied with the corporate and legal structure and
capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which
Subsidiaries is being pledged pursuant to the Loan Documents, including the terms and
conditions of the charter, bylaws and each class of Equity Interests in each Loan Party and
each such Subsidiary and of each agreement or instrument relating to such structure or
capitalization.




     (c) [Intentionally Left Blank]




     (d) There shall have occurred no Material Adverse Change since June 30, 2007.



47









 






     (e) There shall exist no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries pending or threatened before any
Governmental Authority that (i) is reasonably likely to have Material Adverse Effect other
than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or
(ii) purports to affect the legality, validity or enforceability of any Loan Document or the
consummation of the transactions contemplated by this Agreement, and there shall have been
no adverse change in the status, or financial effect on any Loan Party or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.




     (f) All Governmental Authorizations and third party consents and approvals necessary in
connection with the transactions contemplated by this Agreement shall have been obtained
(without the imposition of any conditions that are not acceptable to the Lender Parties) and
shall remain in effect; all applicable waiting periods in connection with the transactions
contemplated by this Agreement shall have expired without any action being taken by any
competent authority, and no law or regulation shall be applicable in the judgment of the
Lender Parties, in each case that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated by this Agreement or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.




     (g) The Lender Parties shall have completed a due diligence investigation of the Loan
Parties, the Borrower and their respective Subsidiaries in scope, and with results,
satisfactory to the Lender Parties; without limiting the generality of the foregoing, the
Lender Parties shall have been given such access to the management, records, books of
account, contracts and properties of the Borrower and its Subsidiaries as they shall have
requested.




     (h) The Borrower shall have paid all accrued fees of the Administrative Agent and the
Lender Parties and all reasonable accrued expenses of the Administrative Agent (including
the reasonable accrued fees and expenses of counsel to the Administrative Agent).




     (i) The Lender Parties shall have received evidence, satisfactory to the Lender
Parties, of the consummation of the Merger Transaction in accordance with the terms hereof
and the terms of the Merger Agreement, without the waiver or amendment of any of the terms
of the Merger Agreement not approved by the Administrative Agent.




     (j) The Lender Parties shall have received evidence, satisfactory to the Lender
Parties, of the termination of that certain $25,000,000 revolving credit facility currently
provided by LaSalle Bank Corporation to NNN Realty Advisors.



     SECTION 3.02 Conditions Precedent to Each Borrowing and Issuance and any Extension.
The obligation of each Appropriate Lender to make an Advance (other than a Letter of Credit Advance
made by the Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and a Swing Line
Advance made by a Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion of each
Borrowing (including the initial Borrowing), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance) and the right of the Borrower to request a Swing
Line Borrowing and, if requested by the Borrower, the extension of the Termination Date pursuant to
Section 2.17, shall be subject to the further conditions precedent that on the date of such
Borrowing or issuance or extension (a) the following statements shall be true and the
Administrative Agent shall have received for the account of such Lender or the Issuing Bank a
certificate signed by a duly authorized officer of the Borrower, dated the date of such Borrowing
or issuance or extension, stating that:



48









 






     (i) the representations and warranties contained in each Loan Document are correct on
and as of such date, before and after giving effect to such Borrowing or issuance or
extension and to the application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing or issuance or extension; and




     (ii) no Default has occurred and is continuing, or would result from such Borrowing or
issuance or extension or from the application of the proceeds therefrom;


and (b) the Administrative Agent shall have received such other approvals, opinions or documents as
the Administrative Agent may reasonably request.




     SECTION 3.03 Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender Party shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender Party prior to the Effective Date
specifying its objection thereto and, such Lender Party shall not have made available to the
Administrative Agent such Lender Party’s ratable portion of such Borrowing.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     SECTION 4.01 Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:




     (a) The Borrower and each of its Restricted Subsidiaries (i) is a corporation or
limited liability company, as the case may be, duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, (ii) subject to Section
5.01(r)(i), is duly qualified and in good standing in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it to so qualify or
be licensed except where the failure to so qualify or be licensed would not have a Material
Adverse Effect, and (iii) has all requisite power and authority (including, without
limitation, all Governmental Authorizations) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted. All of the
outstanding Equity Interests in the Borrower have been validly issued and are fully paid,
non-assessable and owned free and clear of all Liens.




     (b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all
Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary)
the jurisdiction of its incorporation, the number of shares of each class of its Equity
Interests authorized, and the number outstanding, on the date hereof and the percentage of
each such class of its Equity Interests owned (directly or indirectly) by such Loan Party
and the number of shares covered by all outstanding options, warrants, rights of conversion
or purchase and similar rights at the date hereof, and indicating as to each Subsidiary
whether such Subsidiary is a Domestic Subsidiary, Foreign Subsidiary, Restricted Subsidiary
or Unrestricted Subsidiary, as appropriate. All of the outstanding Equity Interests in each
Loan Party’s Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under the Collateral
Documents.



49









 






     (c) The execution, delivery and performance by each Loan Party of each Loan Document to
which it is or is to be a party, and the consummation of the transactions contemplated by
this Agreement, are within such Loan Party’s corporate powers, have been duly authorized by
all necessary corporate action, and do not (i) contravene such Loan Party’s charter or
bylaws, (ii) violate any law, rule, regulation (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any
Loan Party, any of its Restricted Subsidiaries or any of their properties or (iv) except for
the Liens created under the Loan Documents, result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan Party or any of its
Restricted Subsidiaries. No Loan Party or any of its Restricted Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument.




     (d) No Governmental Authorization, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Loan Document to which it is or
is to be a party, or for the consummation of the transactions contemplated by this
Agreement, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof) or (iv) the exercise by
the Administrative Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto,
all of which have been duly obtained, taken, given or made and are in full force and effect.




     (e) This Agreement has been, and each other Loan Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party thereto. This Agreement is,
and each other Loan Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms.




     (f) There is no action, suit, investigation, litigation or proceeding affecting the
Borrower or any other Loan Party or any of their properties or revenues, including any
Environmental Action, pending or threatened before any Governmental Authority or arbitrator
that (i) would be reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of
any Loan Document or the consummation of the transactions contemplated thereby, and there
has been no adverse change in the status, or financial effect on any Loan Party or any of
its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f)
hereto.




     (g) The Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
2007, and the related Consolidated statement of income and Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of Ernst & Young LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at September 30, 2007,
and the related Consolidated statement of income and Consolidated statement of cash flows
of the Borrower and its Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer of the Borrower, copies of which have been furnished to each Lender
Party,



50









 






fairly present, subject, in the case of said balance sheet as at September 30, 2007,
and said statements of income and cash flows for the three months then ended, to year-end
audit adjustments, fairly present the Consolidated financial condition of the Borrower and
its Subsidiaries as at such date and the Consolidated results of operations of the Borrower
and its Subsidiaries for the periods ended on such date, all in accordance with generally
accepted accounting principles applied on a consistent basis, and since June 30, 2007, there
has been no Material Adverse Change.




     (h) The Consolidated balance sheet of NNN Realty Advisors and its Subsidiaries as at
December 31, 2006, and the related Consolidated statement of income and Consolidated
statement of cash flows of NNN Realty Advisors and its Subsidiaries for the fiscal year then
ended, accompanied by an unqualified opinion of Deloitte & Touche LLP, independent public
accountants, and the Consolidated balance sheet of NNN Realty Advisors and its Subsidiaries
as at September 30, 2007, and the related Consolidated statement of income and Consolidated
statement of cash flows of NNN Realty Advisors and its Subsidiaries for the nine months then
ended, duly certified by the Chief Financial Officer of the Borrower, copies of which have
been furnished to each Lender Party, fairly present, subject, in the case of said balance
sheet as at September 30, 2007, and said statements of income and cash flows for the nine
months then ended, to year-end audit adjustments, fairly present the Consolidated financial
condition of NNN Realty Advisors and its Subsidiaries as at such date and the Consolidated
results of operations of NNN Realty Advisors and its Subsidiaries for the periods ended on
such date, all in accordance with generally accepted accounting principles applied on a
consistent basis, and since September 30, 2007, there has been no material adverse change in
the business, assets, properties or financial condition of NNN Realty Advisors and its
Subsidiaries, taken as a whole.




     (i) The Consolidated forecasted balance sheet, statement of income and statement of
cash flows of the Borrower and its Subsidiaries delivered to the Lender Parties pursuant to
Section 3.01(a)(viii) or 5.03 were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in light of the conditions existing at the time
of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best
estimate of its future financial performance.




     (j) No information, exhibit or report furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender Party in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading.




     (k) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any
Letter of Credit will be used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.




     (l) Neither any Loan Party nor any of its Restricted Subsidiaries is an “investment
company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an
“investment company”, as such terms are defined in the Investment Company Act of 1940, as
amended. Neither any Loan Party nor any of its Restricted Subsidiaries 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”, as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment
thereof by the



51









 






Borrower, nor the consummation of the other transactions contemplated by the
Loan Documents, will violate any provision of any such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.




     (m) Neither any Loan Party nor any of its Restricted Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or instrument or subject
to any charter or corporate restriction that would be reasonably likely to have a Material
Adverse Effect.




     (n) All filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents have been duly
made or taken and are in full force and effect, and the Collateral Documents create in favor
of the Administrative Agent for the benefit of the Secured Parties a valid and, together
with such filings and other actions, perfected first priority security interest in the
Collateral, securing the payment of the Secured Obligations, and all filings and other
actions necessary or desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or permitted under
the Loan Documents.




     (o) Each Loan Party is, individually and together with its Restricted Subsidiaries,
Solvent.




     (p) (i) Set forth on Schedule 4.01(p) hereto is a complete and accurate list of all
Plans and Welfare Plans.




     (ii) No ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan that has resulted in or is reasonably expected to result in a material liability of any
Loan Party or any ERISA Affiliate.




     (iii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, as applicable, copies of which have been filed with the Internal
Revenue Service and furnished to the Lender Parties, is complete and accurate and fairly
presents the funding status of such Plan, as applicable, and since the date of such
Schedule B there has been no material adverse change in such funding status.




     (iv) To the Borrower’s best knowledge, neither any Loan Party nor any ERISA Affiliate
has incurred or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.




     (v) To the Borrower’s best knowledge, neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA, and, to the
Borrower’s best knowledge, no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA.



     (q) (i) Except as otherwise set forth on Schedule 4.01(q) hereto, the operations and
properties of each Loan Party and each of its Restricted Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits, all past non-
compliance with such Environmental Laws and Environmental Permits has been resolved
without ongoing obligations or costs, and no circumstances exist to the best of such Loan
Party’s knowledge that are reasonably likely to (A) form the basis of an Environmental
Action against



52









 






any Loan Party or any of its Restricted Subsidiaries or any of their
properties that could have a Material Adverse Effect or (B) cause any such property to be
subject to any restrictions on ownership, occupancy, use or transferability under any
Environmental Law.




     (ii) None of the properties currently or formerly owned or operated by any Loan Party
or any of its Restricted Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to any such property;
there are no and never have been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or
have been treated, stored or disposed on any property currently owned or operated by any
Loan Party or any of its Restricted Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries;
there is no asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Restricted Subsidiaries; and Hazardous Materials
have not been released, discharged or disposed of on any property currently or formerly
owned or operated by any Loan Party or any of its Restricted Subsidiaries. This
representation does not include properties that are or were managed by any Loan Party or any
of its Restricted Subsidiaries in its capacity as property manager for a third party client
so long as the agreement pursuant to which such Loan Party or Restricted Subsidiary acts as
property manager for such properties provides for the indemnification of such Loan Party or
Restricted Subsidiary, or does not subject such Loan Party or Restricted Subsidiary to
liability, for the matters described in clause (ii), and so long as the Loan Party or its
Restricted Subsidiary has not violated any provision of such agreement where such violation
would to any extent void or terminate such indemnity or release from liability.




     (iii) Neither any Loan Party nor any of its Restricted Subsidiaries is undertaking, and
has not completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of any governmental or
regulatory authority or the requirements of any Environmental Law, except with respect to
any de minimis investigation or assessment or remedial or response action at a property that
is or was managed by any Loan Party or its Restricted Subsidiaries in its capacity as
property manager for a third party client so long as the agreement pursuant to which such
Loan Party or Restricted Subsidiary acts as property manager for such property provides for
the indemnification of such Loan Party or Restricted Subsidiary, or does not subject such
Loan Party or Restricted Subsidiary to liability, for such release, and so long as the Loan
Party or its Restricted Subsidiary has not violated any provision of such agreement where
such violation would to any extent void or terminate such indemnity or release from
liability, and so long as such investigation or assessment or remedial or response action is
or was conducted in a manner not reasonably expected to result in material liability to such
Loan Party or Restricted Subsidiary; and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Restricted Subsidiaries have been disposed of in a
manner not reasonably expected to result in material liability to any Loan Party or any of
its Restricted Subsidiaries.




     (r) (i) Neither any Loan Party nor any of its Restricted Subsidiaries is party to any
tax sharing agreement other than a tax sharing agreement approved by the Required Lenders.




     (ii) Each Loan Party and each of its Restricted Subsidiaries and Affiliates has filed,
has caused to be filed or has been included in all tax returns (Federal, state, local and
foreign)



53









 






required to be filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties.




     (s) Neither the business nor the properties of any Loan Party or any of its Restricted
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or
other casualty (whether or not covered by insurance) that would be reasonably likely to have
a Material Adverse Effect.




     (t) Set forth on Schedule 4.01(t) hereto is a complete and accurate list of all
Existing Debt, showing as of the date hereof the obligor and the principal amount
outstanding thereunder.




     (u) [Intentionally Left Blank]




     (v) Set forth on Schedule 4.01(v) hereto is a complete and accurate list of all Liens
on the property or assets of any Loan Party or any of its Restricted Subsidiaries, showing
as of the date hereof the lienholder thereof, the principal amount of the obligations
secured thereby and the property or assets of such Loan Party or such Restricted Subsidiary
subject thereto.




     (w) Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all owned
Borrower Properties showing as of the date hereof the street address, county or other
relevant jurisdiction, state, record owner and book and estimated fair value thereof. Each
Loan Party or such Restricted Subsidiary has good, marketable and insurable fee simple title
to such real property, free and clear of all Liens, other than Liens created or permitted by
the Loan Documents (including, without limitation, the first mortgage liens securing the
GERA Property Acquisition Subsidiary Existing Financing).




     (x) (i) Set forth on Schedule 4.01(x)(i) hereto is a complete and accurate list of all
leased Borrower Properties, showing as of the date hereof the street address, city or other
relevant jurisdiction, state, lessor, lessee and expiration date thereof. Each such lease
is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance
with its terms.




     (ii) Set forth on Schedule 4.01(x)(ii) hereto is a complete and accurate list of all
leases of real property under which any Loan Party is the lessor, showing as of the date
hereof the street address, city or other relevant jurisdiction, state, lessor, lessee and
expiration date thereof. Each such lease is the legal, valid and binding obligation of the
lessee thereof, enforceable in accordance with its terms.




     (y) Set forth on Schedule 4.01(y) hereto is a complete and accurate list of all
Investments held by any Loan Party or any of its Restricted Subsidiaries on the date hereof,
showing as of the date hereof the amount, obligor or issuer and maturity, if any, thereof.




     (z) Set forth on Schedule 4.01(z) hereto is a complete and accurate list of all
Material Contracts of each Loan Party and its Restricted Subsidiaries, showing as of the
date hereof the parties, subject matter and term thereof. Each such Material Contract has
been duly authorized, executed and delivered by all parties thereto, has not been amended or
otherwise modified, is in full force and effect and is binding upon and enforceable against
all parties thereto in accordance with its terms, and there exists no default under any
Material Contract by any party thereto.




     (aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate list of all
patents, trademarks, trade names, service marks and copyrights, and all applications
therefor and licenses



54









 






thereof, of each Loan Party or any of its Subsidiaries, showing as of
the date hereof the jurisdiction in which registered, the registration number, the date of
registration and the expiration date.



ARTICLE V




COVENANTS OF THE BORROWER




     SECTION 5.01 Affirmative Covenants. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the Borrower will:




     (a) Compliance with Laws, Etc. Comply, and cause each of its Restricted
Subsidiaries to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation, compliance with
ERISA, the Patriot Act, the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 and, with respect to open market purchases by the
Borrower of the Borrower’s common equity, a tender offer therefor or a similar transaction
or series of transactions, the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Restricted
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Restricted Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until (i) in the case of income, real estate or other taxes,
any Lien resulting therefrom attaches to its property and either (x) becomes enforceable
against its other creditors or (y) the failure to make such payment would result in the
attempted or actual foreclosure of a Lien against any of the Property of the Borrower or its
Restricted Subsidiaries or (ii) the failure to make such payment would constitute an Event
of Default pursuant to Section 6.01(e).




     (c) Compliance with Environmental Laws. Comply, and cause each of its
Restricted Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable Environmental Laws and
Environmental Permits; obtain and renew, and cause each of its Restricted Subsidiaries to
obtain and renew, all Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Restricted Subsidiaries to conduct, any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in accordance
with the requirements of all Environmental Laws; provided, however, that neither the
Borrower nor any of its Restricted Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.




     (d) Maintenance of Insurance. Maintain, and cause each of its Restricted
Subsidiaries to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same general areas in
which the Borrower or such Restricted Subsidiary operates, and, simultaneously with the
delivery of the Compliance Certificate for the



55









 






third fiscal quarter pursuant to
Section 5.03(c), provide to the Administrative Agent copies of current certificates of
insurance with respect to each insurance coverage maintained by the Borrower and each of its
Restricted Subsidiaries.




     (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Restricted Subsidiaries to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits, licenses, approvals,
privileges and franchises; provided, however, that the Borrower and its Restricted
Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(d) and
provided further that neither the Borrower nor any of its Restricted Subsidiaries shall be
required to preserve any right, permit, license, approval, privilege or franchise if the
Board of Directors of the Borrower or such Restricted Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Borrower
or such Restricted Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Restricted Subsidiary or the
Lender Parties.




     (f) Visitation Rights. At any reasonable time and from time to time, permit
the Administrative Agent or any of the Lender Parties, or the Administrative Agent or
representatives thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Borrower and any of its Restricted
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of
its Restricted Subsidiaries with any of their officers or directors and with their
independent certified public accountants.




     (g) Keeping of Books. Keep, and cause each of its Restricted Subsidiaries to
keep, proper books of record and account, in which full and correct entries shall be made of
all financial transactions and the assets and business of the Borrower and each such
Restricted Subsidiary in accordance with generally accepted accounting principles in effect
from time to time.




     (h) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Restricted Subsidiaries to maintain and preserve, all of its properties that are used or
useful in the conduct of its business in good working order and condition, ordinary wear and
tear excepted.




     (i) Transactions with Affiliates. Conduct, and cause each of its Restricted
Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents with
any of their Affiliates on terms that are no less favorable to the Borrower or such
Restricted Subsidiary than it would obtain in a comparable arms’-length transaction with a
Person not an Affiliate; provided, however, any such transaction must be in the ordinary
course of business of the Borrower or such Restricted Subsidiary or permitted under Section
5.02(e)(v). Each of the GERA Agreements is permitted hereunder.




     (j) Covenant to Guarantee Obligations and Give Security. Upon (x) the request
of the Administrative Agent following the occurrence and during the continuance of a
Default, (y) the formation or acquisition of any new direct or indirect Subsidiaries by any
Loan Party (other than (i) the acquisition of any Subsidiary which, when taken together with
all other Guarantor Income Threshold Excluded Subsidiaries, has for the four consecutive
fiscal quarters immediately preceding any such acquisition a Consolidated Net Income on a
pro forma basis of less than $500,000 in the aggregate (such Consolidated Net Income, the “Guarantor Income
Threshold”) or (ii) the formation of any Subsidiary which, in the judgment of the
Administrative Agent, will, when taken together with all other Guarantor Income Threshold
Excluded Subsidiaries, have in its first four consecutive fiscal quarters of operation a
Consolidated Net Income on a pro forma basis less than the Guarantor Income Threshold (any
Subsidiary excluded under the preceding



56









 






clauses (i) or (ii) being referred to herein as a
“Guarantor Income Threshold Excluded Subsidiary”)) or (z) the acquisition of any property
for a purchase price in excess of $500,000 (other than the acquisition of a Restricted
Subsidiary) by any Loan Party, and such property, in the judgment of the Administrative
Agent, shall not already be subject to a perfected first priority security interest in favor
of the Administrative Agent for the benefit of the Secured Parties, then in each case at the
Borrower’s expense:




     (i) in connection with the formation or acquisition of a Subsidiary that is not
(x) a CFC or (y) a Subsidiary that is held directly or indirectly by a CFC, within
10 days after such formation or acquisition, cause each such Subsidiary, and cause
each direct and indirect parent of such Subsidiary (if it has not already done so),
to duly execute and deliver to the Administrative Agent a Guaranty Supplement, in
substantially the form of Exhibit E hereto, guaranteeing the other Loan Parties’
obligations under the Loan Documents,




     (ii) within 10 days after (A) such request furnish to the Administrative Agent
a description of the real and personal properties of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the Administrative Agent and (B)
such formation or acquisition, furnish to the Administrative Agent a description of
the real and personal properties of such Subsidiary or the real and personal
properties so acquired, in each case in detail satisfactory to the Administrative
Agent,




     (iii) within 15 days after (A) such request or acquisition of property for a
purchase price in excess of $500,000 by any Loan Party, duly execute and deliver,
and cause each Loan Party to duly execute and deliver, to the Administrative Agent
such additional mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other security agreements
as specified by, and in form and substance satisfactory to the Administrative Agent,
securing payment of all the Obligations of such Loan Party under the Loan Documents
and constituting Liens on all such properties and (B) such formation or acquisition
of any new Subsidiary, duly execute and deliver and cause each Subsidiary to duly
execute and deliver to the Administrative Agent mortgages, pledges, assignments,
security agreement supplements, intellectual property security agreement supplements
and other security agreements as specified by, and in form and substance
satisfactory to the Administrative Agent, securing payment of all of the obligations
of such Subsidiary under the Loan Documents, provided, that (A) the stock of any
Subsidiary held by a CFC shall not be pledged and (B) if such new property is Equity
Interests in a CFC, only 66% of such Equity Interests shall be pledged in favor of
the Secured Parties,




     (iv) within 30 days after such request, formation or acquisition, take, and
cause each Loan Party and each newly acquired or newly formed Subsidiary (other than
any Subsidiary that is a CFC or a Subsidiary that is held directly or indirectly by
a CFC) to take, whatever action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Administrative Agent to vest in the Administrative
Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges, assignments, security
agreement supplements, intellectual property security agreement supplements and
security agreements delivered pursuant to this Section 5.01(j), enforceable against
all third parties in accordance with their terms,



57









 






     (v) within 60 days after such request, formation or acquisition, deliver to the
Administrative Agent, upon the request of the Administrative Agent in its sole
discretion, a signed copy of a favorable opinion, addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan Parties acceptable to
the Administrative Agent as to (1) the matters contained in clauses (i), (iii) and
(iv) above, (2) such guaranties, guaranty supplements, mortgages, pledges,
assignments, security agreement supplements, intellectual property security
agreement supplements and security agreements being legal, valid and binding
obligations of each Loan Party party thereto enforceable in accordance with their
terms, as to the matters contained in clause (iv) above, (3) such recordings,
filings, notices, endorsements and other actions being sufficient to create valid
perfected Liens on such properties, and (4) such other matters as the Administrative
Agent may reasonably request,




     (vi) as promptly as practicable after such request, formation or acquisition,
deliver, upon the request of the Administrative Agent in its sole discretion, to the
Administrative Agent with respect to each parcel of real property owned or held by
each Loan Party and each newly acquired or newly formed Subsidiary (other than any
Subsidiary that is a CFC or a Subsidiary that is held directly or indirectly by a
CFC) title reports, title insurance policies, surveys and engineering, soils and
other reports, environmental assessment reports and estoppel and consent agreements,
each in scope, form and substance satisfactory to the Administrative Agent,
provided, however, that to the extent that any Loan Party or any of its Subsidiaries
shall have otherwise received any of the foregoing items with respect to such real
property, such items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent,




     (vii) at any time and from time to time, promptly execute and deliver, and
cause to execute and deliver, each Loan Party and each newly acquired or newly
formed Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is
held directly or indirectly by a CFC) any and all further instruments and documents
and take, and cause each Loan Party and each newly acquired or newly formed
Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC) to take, all such other action as the
Administrative Agent may deem necessary or desirable in obtaining the full benefits
of, or in perfecting and preserving the Liens of, such guaranties, mortgages,
pledges, assignments, security agreement supplements, intellectual property security
agreement supplements and security agreements,




     (viii) in connection with the formation or acquisition of a Limited Purpose
Subsidiary, within 10 days after such formation or acquisition, cause each such
Limited Purpose Subsidiary, and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a pledge, security agreement supplement and other security
agreements as specified by, and in form and substance satisfactory to, the
Administrative Agent, so as to create a first priority Lien on the Equity Interests
in such Limited Purpose Subsidiary in favor of the Administrative Agent on behalf of
the Lenders securing payment of all of the obligations of such Limited Purpose
Subsidiary under the Loan Documents. For avoidance of doubt, Sections 5.01(j)(i) through 5.01(j)(vi) shall not apply with respect to any
Subsidiary that is a Limited Purpose Subsidiary and Section 5.01(j)(vii) shall only
apply with respect to any Subsidiary that is a Limited Purpose Subsidiary to the
extent the same relate to matters customary and prudent in the context of the taking
of a mortgage or a pledge of Equity Interests, as applicable; and



58









 






     (ix) as promptly as practicable after all Guarantor Income Threshold Excluded
Subsidiaries have a Consolidated Net Income for any four consecutive fiscal quarters
in excess of or equal to the Guarantor Income Threshold, Borrower shall notify the
Administrative Agent in writing thereof and, upon the request of the Administrative
Agent, shall thereafter deliver to the Administrative Agent any items described in
the forgoing clauses (i) through (viii) as the Administrative Agent shall request.




     For the avoidance of doubt, nothing contained in this Section 5.01(j) shall be deemed
to require the Borrower to mortgage to the Administrative Agent or the Lender Parties any
property currently subject to a mortgage by any of the GERA Property Acquisition
Subsidiaries which secures the GERA Property Acquisition Subsidiary Existing Financing.




     (k) Further Assurances. (i) Promptly upon request by the Administrative
Agent, or any Lender Party through the Administrative Agent, correct, and cause each of its
Restricted Subsidiaries promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation
thereof, and




(ii) Promptly upon request by the Administrative Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments,
financing statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other instruments as the
Administrative Agent, or any Lender Party through the Administrative Agent, may
reasonably require from time to time in order to (A) carry out more effectively the
purposes of the Loan Documents, (B) to the fullest extent permitted by applicable
law, subject any Loan Party’s or any of its Restricted Subsidiaries’ properties,
assets, rights or interests to the Liens now or hereafter intended to be covered by
any of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties under any
Loan Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Restricted Subsidiaries is or is to
be a party, and cause each of its Restricted Subsidiaries to do so.




     (l) Preparation of Environmental Reports. At the request of the Administrative
Agent from time to time, provide to the Lender Parties within 60 days after such request, at
the expense of the Borrower, an environmental site assessment report for any of its or its
Restricted Subsidiaries’ properties described in the Mortgages, prepared by an environmental
consulting firm acceptable to the Administrative Agent, indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance, removal or remedial action
in connection with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any time that a
material risk exists that any such report will not be provided within the time referred to
above, the Administrative Agent may retain an
environmental consulting firm to prepare such report at the expense of the Borrower,
and the Borrower hereby grants and agrees to cause any Restricted Subsidiary that owns any
property described in the Mortgages to grant at the time of such request to the
Administrative Agent, the Lender Parties, such firm and the Administrative Agent or
representatives thereof an irrevocable non-exclusive license, subject to the rights of
tenants, to enter onto their respective properties to undertake such an assessment.



59









 






     (m) Compliance with Terms of Leaseholds. Make all payments and otherwise
perform all obligations in respect of all leases of real property to which the Borrower or
any of its Restricted Subsidiaries is a party, keep such leases in full force and effect and
not allow such leases to lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any default by any party with
respect to such leases and cooperate with the Administrative Agent in all respects to cure
any such default, and cause each of its Restricted Subsidiaries to do so, except, in any
case, where the failure to do so, either individually or in the aggregate, is not reasonably
likely to have a Material Adverse Effect.




     (n) Cash Concentration Accounts. Maintain, and cause each of its Restricted
Subsidiaries to maintain, main cash concentration accounts into which all proceeds of
Collateral are paid with one or more banks acceptable to the Administrative Agent that have
accepted the assignment of such accounts to the Administrative Agent for the benefit of the
Secured Parties pursuant to the Security Agreement.




     (o) Interest Rate Hedging. Enter into within fifteen (15) days after the
Effective Date, and maintain at all times thereafter, interest rate Hedge Agreements (i)
with Persons acceptable to the Administrative Agent, (ii) providing either an interest-rate
swap for a fixed rate of interest acceptable to the Administrative Agent or an interest-rate
cap at an interest rate acceptable to the Administrative Agent, (iii) covering a notional
amount equal to the amount, if any, by which (A) 50% of Debt for Borrowed Money of the
Borrower and its Subsidiaries exceeds (B) all Debt for Borrowed Money of the Borrower and
its Subsidiaries then accruing interest at a fixed rate and (iv) otherwise on terms and
conditions acceptable to the Administrative Agent.




     (p) Performance of Material Contracts. Perform and observe all the terms and
provisions of each Material Contract to be performed or observed by it, maintain each such
Material Contract in full force and effect, enforce each such Material Contract in
accordance with its terms, take all such action to such end as may be from time to time
requested by the Administrative Agent and, upon request of the Administrative Agent, make to
each other party to each such Material Contract such demands and requests for information
and reports or for action as any Loan Party or any of its Restricted Subsidiaries is
entitled to make under such Material Contract, and cause each of its Restricted Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the
aggregate, is not reasonably likely to have a Material Adverse Effect.




     (q) Inactive Subsidiaries. (i) Listed on Schedule 5.01(q) are all of the
direct and indirect Subsidiaries (the “Inactive Subsidiaries”) of the Borrower which (A) are
inactive and hold either no assets or a nominal amount of assets, (B) are not Restricted
Subsidiaries and (C) the Borrower is planning to dissolve on or prior to the correlative
date listed for such Inactive Subsidiary on Schedule 5.01(q).




     (ii) The Borrower shall dissolve each Inactive Subsidiary on or prior to the
correlative date listed for such Inactive Subsidiary on Schedule 5.01(q).




     (iii) The Borrower has delivered to the Administrative Agent all of the stock
certificates for each Inactive Subsidiary, and, upon the Borrower’s request, the
Administrative Agent will surrender to the Borrower the stock certificates for any
Inactive Subsidiary that is dissolved. Upon its receipt of any such stock
certificates, the Borrower shall mark such stock certificates cancelled and place
them into the minute book for such dissolved Inactive Subsidiary.



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     (iv) The Borrower will not at any time conduct (and will not permit its
Restricted Subsidiaries to conduct) any new business in the Inactive Subsidiaries
and will not at any time transfer (and will not permit its Restricted Subsidiaries
to transfer) any Collateral or any other assets into the Inactive Subsidiaries
without the prior written consent of the Administrative Agent.




     (r) Post Closing Matters. (i) Within 30 days subsequent to the Effective Date
(or such later date as may be agreed by the Administrative Agent), the Borrower will provide
evidence that (A) (i) the Borrower is duly qualified and in good standing in the States of
Wyoming, Idaho and Indiana, (ii) Grubb & Ellis Affiliates, Inc. is duly qualified and in
good standing in the State of Kansas, and (iii) Triple Net Properties Realty, Inc. is duly
qualified and in good standing in the States of Delaware, Washington and Arkansas, which
evidence, in each case, shall consist of certificates of the relevant secretaries of state
certifying that each such Loan Party is duly qualified and in good standing as a foreign
corporation in each such state; and (B) each of the Borrower and Grubb & Ellis Affiliates,
Inc. has filed any and all annual reports with the relevant Governmental Authority in the
jurisdiction of its organization that is required to be filed.




	 	(ii)	 	Within 30 days subsequent to the Effective Date (or such later
date as may be agreed by the Administrative Agent), the Borrower will deliver
to the Administrative Agent Securities Account Control Agreements or Account
Control Agreements, as applicable, with respect to each of the Pledged Bank
Accounts listed on Schedule 5.01(r)(ii) hereto, each of which shall be duly
executed by all of the parties thereto other than the Administrative Agent.
	 
	 	(iii)	 	Simultaneously with the delivery of the Account Control
Agreements and Securities Account Control Agreements pursuant to clause (ii)
above, the Borrower shall deliver to the Administrative Agent a favorable
opinion of Zukerman Gore & Brandeis LLP, special counsel for the Loan Parties,
in substantially the form of Exhibit I hereto, and as to such other matters as
any Lender Party through the Administrative Agent may reasonably request.
	 
	 	(iii)	 	Within 30 days subsequent to the Effective Date (or such later
date as may be agreed by the Administrative Agent), the Borrower will deliver
to the Administrative Agent evidence that the UCC-1 financing statements listed
on Schedule 5.01(r)(iii) have been terminated of record in the jurisdictions in
which they are filed.





     SECTION 5.02 Negative Covenants. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the Borrower will not, at any
time:




     (a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with
respect to any of its properties of any character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit any of its Restricted
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower or any of its Restricted
Subsidiaries as debtor, or sign or suffer to exist, or permit any of its Restricted
Subsidiaries to sign or suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit any of its
Restricted Subsidiaries to assign, any accounts or other right to receive income, except:



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     (i) Liens created under the Loan Documents;




     (ii) Permitted Liens;




     (iii) Liens existing on the date hereof and described on Schedule 4.01(v)
hereto, provided, that no such Lien is spread to cover any additional property after
the Effective Date and that the principal amount of Debt secured thereby is not
increased;




     (iv) purchase money Liens upon or in real property or equipment acquired or
held by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment or to secure
Debt incurred solely for the purpose of financing the acquisition of any such
property or equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any such Liens created
in contemplation of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to or cover any
property other than the property or equipment being acquired, and no such extension,
renewal or replacement shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed or replaced;




     (v) any interest or title of a lessor under any lease entered into by the
Borrower or any other Restricted Subsidiary in the ordinary course of its business
and covering only the assets so leased (and related general intangibles and
identifiable proceeds specifically related to such assets);




     (vi) Liens securing Debt on Property acquired by a Loan Party or on Property of
a Person existing at the time such Person is merged into or consolidated with the
Borrower or any Restricted Subsidiary of the Borrower or becomes a Restricted
Subsidiary of the Borrower, provided, that such Liens (other than replacement Liens
permitted elsewhere herein) were not created in contemplation of such acquisition,
merger, consolidation or investment and do not extend to any assets other than those
of the Person merged into or consolidated with the Borrower or such Restricted
Subsidiary or acquired by the Borrower or such Restricted Subsidiary;




     (vii) Liens in respect of goods consigned to the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business, provided, that such
Liens are limited to the goods so consigned;




     (viii) the replacement, extension, or renewal of any Lien permitted under
clause (iii) or (vi) above upon or in the same property theretofore subject thereto
or the replacement, extension or renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured thereby;




     (ix) Liens permitted under Section 5.02(l); and




     (x) Liens securing Non-Recourse Debt permitted under Section 5.02(b)(iv),
provided that no such Lien shall extend to or cover any Collateral.




     (b) Debt. Create, incur, assume or suffer to exist, or permit any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:



62









 






     (i) in the case of the Borrower,




     (A) Debt in respect of Hedge Agreements designed to hedge against
fluctuations in interest rates incurred in the ordinary course of business
and consistent with prudent business practice with the aggregate Agreement
Value thereof not to exceed $2,000,000 at any time outstanding, and




     (B) Debt owed to a Restricted Subsidiary of the Borrower, which Debt
(x) shall, in the case of Debt owed to a Loan Party, constitute Pledged
Debt, (y) shall be on terms acceptable to the Administrative Agent and (z)
if evidenced by promissory notes, such promissory notes shall be in form and
substance satisfactory to the Administrative Agent and shall, in the case of
Debt owed to a Loan Party, be pledged as security for the Obligations of the
holder thereof under the Loan Documents to which such holder is a party and
delivered to the Administrative Agent pursuant to the terms of the Security
Agreement;




     (ii) in the case of any Restricted Subsidiary of the Borrower, Debt owed to the
Borrower or to a Restricted Subsidiary of the Borrower, provided, that, in each
case, such Debt (x) shall, in the case of Debt owed to a Loan Party, constitute
Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent and (z)
shall be evidenced by promissory notes in form and substance satisfactory to the
Administrative Agent and such promissory notes shall, in the case of Debt owed to a
Loan Party, be pledged as security for the Obligations of the holder thereof under
the Loan Documents to which such holder is a party and delivered to the
Administrative Agent pursuant to the terms of the Security Agreement;




     (iii) in the case of the Borrower and its Restricted Subsidiaries,




     (A) Debt under the Loan Documents,




     (B) Debt secured by Liens permitted by Section 5.02(a)(iv),




     (C) Capitalized Leases,




     (D) (x) the Existing Debt, and (y) any Debt extending the maturity of,
or refunding or refinancing, in whole or in part, any Existing Debt,
provided, that the terms of any such extending, refunding or refinancing
Debt, and of any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the Loan Documents,
provided further that the principal amount of such Existing Debt shall not
be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing, provided still further that the terms relating to principal
amount, amortization, maturity, collateral (if any) and subordination (if
any), and other material terms taken as a whole, of any such extending,
refunding or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender Parties than the terms of
any agreement or instrument governing the Existing Debt being extended,
refunded or refinanced and the interest rate applicable to



63









 






any such extending, refunding or refinancing Debt does not exceed the then applicable
market interest rate,




     (E) Debt of any Person that becomes a Restricted Subsidiary of the
Borrower after the date hereof in accordance with the terms of
Section 5.02(f) which Debt is existing at the time such Person becomes a
Restricted Subsidiary of the Borrower (other than Debt incurred solely in
contemplation of such Person becoming a Restricted Subsidiary of the
Borrower),




     (F) Contingent Obligations (1) in respect of obligations of the Loan
Parties permitted hereunder, (2) described on Schedule 5.02(b)(iii)(F), (3)
arising in connection with indemnity programs for employees and or agents,
and (4) in respect of loans and advances made to employees and/or agents
pursuant to the Commission Advance Program or on account of errors and
omissions insurance coverage programs,




     (G) Debt under any insurance premium financing arrangement entered into
in the ordinary course of business, and




     (H) other Debt not otherwise prohibited by the terms of the proviso set
forth at the end of this Section 5.02(b) and subordinated to Debt incurred
hereunder on terms and conditions reasonably satisfactory to the
Administrative Agent (except to the extent otherwise permitted by Section
8.06);




     (iv) in the case of any Limited Purpose Subsidiary, Non-Recourse Debt, provided
that, notwithstanding the treatment of GERA Property Acquisition and the GERA
Property Acquisition Subsidiaries as Unrestricted Subsidiaries for financial
covenant purposes, the Borrower is in compliance with Section 5.04(a) without regard
to the proviso thereto; and




     (v) In the case of any Triple Net Properties Limited Purpose Subsidiary, Debt
for Borrowed Money (excluding Debt for Borrowed Money which is Non-Recourse Debt
other than Debt for Borrowed Money in respect of Non-Recourse Mezzanine Financing)
which is secured by direct Equity Interests in the Triple Net Properties Limited
Purpose Subsidiary that has incurred such Debt for Borrowed Money;




provided, however, that notwithstanding the provisions of subsections (iii)(A) through
(iii)(H) above, the aggregate amount of all Debt described in subsections (iii)(B),
(iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above that is secured by Liens shall not exceed
$20,000,000 at any time outstanding.




     (c) Change in Nature of Business. Make, or permit any of its Restricted
Subsidiaries to make, any material change in the nature of its business as carried on at the
date hereof; or engage in, or permit any of its Restricted Subsidiaries to engage in, any
business other than businesses that are reasonably related to the real estate services
business, or other services businesses (in the scope that is currently operated by the
“Business Services” unit of Grubb & Ellis Management Services, Inc.) or, with respect to any
Limited Purpose Subsidiary, the ownership and operation of real property.




     (d) Mergers, Etc. Merge into or consolidate with any Person or permit any
Person to merge into it, or permit any of its Restricted Subsidiaries to do so, except that:



64









 






     (i) any Restricted Subsidiary of the Borrower may merge into or consolidate
with any other Restricted Subsidiary of the Borrower, provided, that, in the case of
any such merger or consolidation, the Person formed by such merger or consolidation
shall be a Restricted Subsidiary of the Borrower, provided further that, in the case
of any such merger or consolidation to which a Guarantor is a party, the Person
formed by such merger or consolidation shall be a Guarantor;




     (ii) in connection with any acquisition permitted under Section 5.02(f), any
Restricted Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it, provided,
that the Person surviving such merger shall be a Restricted Subsidiary of the
Borrower;




     (iii) in connection with any sale or other disposition permitted under Section
5.02(e) (other than clause (ii) thereof), any Restricted Subsidiary of the Borrower
may merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it;




     (iv) the Merger Transaction may be consummated in accordance with the Merger
Agreement; and




     (v) any of the Borrower’s Restricted Subsidiaries may merge into the Borrower;




provided, however, that in each case, immediately before and after giving effect thereto, no
Default shall have occurred and be continuing and, in the case of any such merger to which
the Borrower is a party, the Borrower is the surviving corporation.




     (e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose of, or
permit any of its Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of,
any assets, or grant any option or other right to purchase, lease or otherwise acquire any
assets, except:




     (i) Dispositions of assets in the ordinary course of its business and the
granting of any option or other right to purchase, lease or otherwise acquire assets
in the ordinary course of its business;




     (ii) in a transaction authorized by Section 5.02(d) (other than subsection (iv)
thereof);




     (iii) the sale or issuance of the Equity Interests of any Subsidiary to the
Borrower or any Restricted Subsidiary;




     (iv) the Disposition of other assets by the Borrower or any Restricted
Subsidiary so long as (A) the purchase price paid to the Borrower or such Restricted
Subsidiary for such asset shall be not less than the fair market value of such asset
at the time of such sale, (B) at least 75% of the purchase price for such asset
shall be paid to the Borrower or such Restricted Subsidiary in cash or Cash
Equivalents, (C) the aggregate purchase price paid to the Borrower and all of its
Restricted Subsidiaries for such asset and all other assets sold by the Borrower and
its Restricted Subsidiaries during the same Fiscal Year pursuant to this clause (iv)
shall not exceed $1,000,000 and (D) all of the proceeds of such sale are reinvested
in substitute or other assets used or useful in the



65









 






Borrower’s business or applied
to prepay the Advances pursuant to Section 2.06(b)(ii) or (c)(ii); and




     (v) the (direct or indirect) sale of real property acquired pursuant to Section
5.02(f)(xi) to (A) GERA for no less than the aggregate Cost Basis or (B) an
unaffiliated third party in accordance with Section 5.01(s) for fair market value
and consideration consisting of at least 95% cash.




     (f) Investments in Other Persons. Make or hold, or permit any of its
Restricted Subsidiaries to make or hold, any Investment in any Person, except:




     (i) (A) equity Investments by the Borrower and its Restricted Subsidiaries in
their Restricted Subsidiaries outstanding on the date hereof and (B) additional
equity Investments in Loan Parties;




     (ii) Investments by the Borrower and its Restricted Subsidiaries in Cash
Equivalents;




     (iii) Investments existing on the date hereof and described on Schedule 4.01(y)
hereto;




     (iv) Investments by the Borrower in Hedge Agreements permitted under
Section 5.02(b)(i)(A);




     (v) Investments consisting of intercompany Debt permitted under
Section 5.02(b);




     (vi) Extensions of trade credit in the ordinary course of business;




     (vii) Promissory notes and other similar non-cash consideration received by the
Borrower and any Loan Party in connection with the Dispositions permitted by Section
5.02(e);




     (viii) Loans and advances in the ordinary course of business to vendors or
suppliers of the Borrower and any other Loan Party or relating to relocation
expenses;




     (ix) Investments in Permitted Acquisitions, provided that Acquisitions
qualifying under clause (c) of the definition thereof and constituting Limited Joint
Ventures shall not exceed $10,000,000 in the aggregate in any given Measurement
Period;




     (x) Loans or other advances under the Commission Advance Program to, or on
account of errors and omissions insurance premium payments for, employees and/or
agents;




     (xi) Investments by the Borrower or one or more Restricted Subsidiaries in a
Limited Purpose Subsidiary to facilitate the acquisition of certain real property
(and capital expenditures relating to such real property), which real property shall
be acquired with the expectation that it be sold (directly or indirectly) to GERA in
accordance with Section 5.02(e)(v)(A) on or before September 30, 2008 or otherwise
in accordance with Section 5.01(r), provided that any such Investments by the
Borrower or one or more



66









 






Restricted Subsidiaries are made on or before the earlier of
(A) the date on which such real property is sold in accordance with Section
5.02(e)(v) and (B) September 30, 2008;




     (xii) Investments by the Borrower and its Restricted Subsidiaries not otherwise
permitted under this Section 5.02(f) in an aggregate amount not to exceed
$1,000,000, provided that, with respect to each Investment made pursuant to this
clause (xii):




     (A) such Investment shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of the Borrower and
its Restricted Subsidiaries, taken as a whole (as determined in good faith
by the board of directors (or persons performing similar functions) of the
Borrower or such Restricted Subsidiary if the board of directors is
otherwise approving such transaction and, in each other case, by a
Responsible Officer);




     (B) such Investment shall be in property and assets which are part of,
or in lines of business which are, substantially the same lines of business
as one or more of the principal businesses of the Borrower and its
Restricted Subsidiaries in the ordinary course;




     (C) any determination of the amount of such Investment shall include
all cash and noncash consideration (including, without limitation, the fair
market value of all Equity Interests issued or transferred to the sellers
thereof, all indemnities, earnouts and other contingent payment obligations
to, and the aggregate amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Borrower and its
Restricted Subsidiaries in connection with such Investment; and




     (D) (1) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after giving effect to such
purchase or other acquisition, the Borrower and its Restricted Subsidiaries
shall be in pro forma compliance with the covenants set forth in Section
5.04, such compliance to be determined on the basis of the financial
statements and other financial information most recently delivered to the
Administrative Agent and the Lender Parties pursuant to Section 5.03 as
though such Investment had been consummated as of the first day of the
fiscal period covered thereby; and




     (xiii) Investments by the Borrower and its Restricted Subsidiaries in warrants
(trading under the ticker symbol GAV.WS) representing rights to purchase shares of
common stock of GERA in an aggregate amount not to exceed $3,500,000.




     (g) Restricted Payments. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Restricted Subsidiaries



67









 






to do any of the foregoing, or permit any
of its Restricted Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for
value any Equity Interests in the Borrower (collectively, “Restricted Payments”), except
that, so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:




     (i) The Borrower may declare and pay dividends in any Fiscal Year in an
aggregate amount of up to (A) 50% of (B) Consolidated Net Income plus, without
duplication and to the extent reflected as a charge in the statement of Consolidated
Net Income for the applicable Measurement Period, the sum of (i) depreciation
expense, (ii) amortization expense, (iii) non-cash charges relating to stock
compensation, and (iv) any non-recurring severance or integration-related cash
expenses or losses relating to the Merger Transaction (such amount, the
“Dividend/Share Repurchase Limitation”) ;




     (ii) any Loan Party may make Restricted Payments to another Loan Party;




     (iii) any purchase, redemption, retirement, defeasance or other acquisition of
any shares of any class of common stock of the Borrower effected solely through the
issuance of common stock of the Borrower having the same economic and voting terms
as such class of common stock shall be permitted; and




     (iv) the Borrower may repurchase shares of its Equity Interests for a purchase
price not to exceed $25,000,000 in the aggregate from and after the date hereof,
which repurchase may include a Restricted Payment to a Person, who is a Beneficial
Owner of Equity Interests as of the Effective Date, in connection with the
repurchase or exchange of Equity Interests held by such Person;




; provided, however that in no event may in any Fiscal Year the dividends paid under
Section 5.02(g)(i) plus the Equity Interests repurchased under Section 5.02(g)(iv)
exceed, in the aggregate, the Dividend/Share Repurchase Limitation.




     (h) Lease Obligations. Create, incur, assume or suffer to exist, or permit any
of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any obligations
as lessee (i) for the rental or hire of real or personal property in connection with any
sale and leaseback transaction, or (ii) for the rental or hire of other real or personal
property of any kind (other than a lease for office space to be occupied by the Borrower or
its Restricted Subsidiaries and leases entered into in the ordinary course of business for
the benefit of tenants or owners of real property managed by the Borrower or its Restricted
Subsidiaries to the extent any payments required to be made thereunder by the Borrower or
its Restricted Subsidiaries are paid or promptly reimbursable by such tenants or owners)
under leases or agreements to lease (including, without limitation, Capitalized Leases)
having an original term of one year or more that would cause the direct and contingent
liabilities of the Borrower and its Restricted Subsidiaries, on a Consolidated basis, in
respect of all such obligations described in this clause (ii) to exceed $2,500,000
payable in any Measurement Period.




     (i) Amendments of Constitutive Documents. Amend, or permit any of its
Restricted Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents, other than in connection with any such amendment required for the
issuance of equity securities not in excess of the authorized capital of the Borrower or any
Restricted Subsidiary as of the Effective Date. Notwithstanding the foregoing, subject to
the Administrative Agent’s approval (which approval shall not be unreasonably withheld or
delayed), any Limited Purpose Subsidiary



68









 






may amend its constitutive documents in connection
with any Non-Recourse Debt permitted under Section 5.02(b)(iv).




     (j) Accounting Changes. Without 10 days’ subsequent written notice to the
Administrative Agent, make or permit, or permit any of its Restricted Subsidiaries to make
or permit, any change in (i) accounting policies or reporting practices, except as required
by generally accepted accounting principles, or (ii) Fiscal Year.




     (k) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Debt, except (i) the prepayment of the Advances
in accordance with the terms of this Agreement, (ii) regularly scheduled or required
repayments or redemptions of Existing Debt, (iii) any prepayments or redemptions of Existing
Debt in connection with a refunding or refinancing of such Existing Debt permitted by
Section 5.02(b)(iii)(D) or (iv) the prepayment of any Non-Recourse Debt in connection with
the (direct or indirect) sale of any Investment in real property pursuant to Section 5.01(s)
or Section 5.02(e)(v), or amend, modify or change in any manner any term or condition of any
Existing Debt, or permit any of its Restricted Subsidiaries to do any of the foregoing other
than to prepay any Debt payable to the Borrower.




     (l) Negative Pledge. Enter into or suffer to exist, or permit any of its
Restricted Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or assets
except (i) in favor of the Secured Parties or (ii) in connection with (A) any Existing Debt,
(B) any purchase money Debt permitted by Section 5.02(b)(iii)(B) or any Non-Recourse Debt
permitted by Section 5.02(b)(iv), in each case solely to the extent that the agreement or
instrument governing such Debt or Non-Recourse Debt prohibits a Lien on the property subject
thereto, (C) any Capitalized Lease permitted by Section 5.02(b)(iii)(C) solely to the extent
that such Capitalized Lease prohibits a Lien on the property subject thereto, or (D) in
connection with a lease of real property, the Borrower may grant the landlord, as security
for its performance under the lease, a Lien on the Borrower’s tangible personal property
physically located within the leased premises; provided, however, that the aggregate fair
market value of such property pledged as collateral shall not exceed $100,000.




     (m) Partnerships, Etc. Become a general partner in any general or limited
partnership or joint venture, or permit any of its Restricted Subsidiaries to do so;
provided, however, that notwithstanding the foregoing, the Borrower and any other Loan Party
may (1) be a general or limited partner in any general or limited partnership, (2) be a
member or manager of, or hold a limited liability company interest in, a limited liability
company, (3) be a joint venturer or hold a joint venture interest in any joint venture or
(4) make and maintain equity investments in real estate portfolios and Persons which own or
manage commercial real estate (each a “Restricted Investment”), provided that each of the
following requirements is met:




     (i) the Loan Party making the Investment shall, to the extent permitted by
applicable investment contracts and other documents relating to such Investment,
grant and cause to be perfected a first priority security interest or other first
lien position (except for Permitted Liens) of the Loan Party’s interest in the
property constituting the Restricted Investment;




     (ii) the nature of the Investment and the Person or property subject to the
Investment shall not result in the Loan Party becoming directly or contingently
liable for any obligations of such Person or related to such property in excess of
the amount of the



69









 






Investment, nor shall the Investment constitute a direct
investment by the Loan Party in real property or real property improvements; and




     (iii) no Default exists at the time such Restricted Investment is made or would
occur as a result of such Restricted Investment.




     (n) Speculative Transactions. Engage, or permit any of its Restricted
Subsidiaries to engage, in any transaction involving commodity options or futures contracts
or any similar speculative transactions.




     (o) Formation of Subsidiaries. Organize or invest, or permit any of its
Restricted Subsidiaries to organize or invest, in any new Subsidiary except (i) CFCs and
special purpose vehicles organized in the ordinary course of business by the Borrower or its
Restricted Subsidiaries, which may be capitalized in an amount not to exceed $100,000
individually and $300,000 in the aggregate, and (ii) as permitted under Section 5.02(f)(i),
(v), (vii) or (xi).




     (p) Payment Restrictions Affecting Restricted Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its Restricted Subsidiaries to
enter into or suffer to exist, any agreement or arrangement limiting the ability of any of
its Restricted Subsidiaries to declare or pay dividends or other distributions in respect of
its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or
otherwise transfer assets to or invest in, the Borrower or any Restricted Subsidiary of the
Borrower (whether through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except (i) the Loan Documents, (ii) any
agreement or instrument evidencing Existing Debt or Non-Recourse Debt permitted under
Section 5.02(b)(iv) and (iii) any agreement in effect at the time such Restricted Subsidiary
becomes a Subsidiary of the Borrower, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Subsidiary of the Borrower.




     (q) Amendment, Etc., of Material Contracts. Cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend or otherwise
modify any Material Contract or give any consent, waiver or approval thereunder, waive any
default under or breach of any Material Contract, agree in any manner to any other
amendment, modification or change of any term or condition of any Material Contract or take
any other action in connection with any Material Contract that would materially impair the
value of the interest or rights of any Loan Party thereunder or that would materially impair
the interest or rights of the Administrative Agent or any Lender Party, or permit any of its
Restricted Subsidiaries to do any of the foregoing.




     (r) Maximum New Hire Bonuses. Make aggregate cash payments in connection with
the hiring or engagement of officers, employees or representatives of the Borrower (“New
Hire Bonuses”) in any Measurement Period in excess of the amount set forth below for such
Measurement Period unless any payments in excess of such amount in any Measurement Period is
approved in writing by the Administrative Agent in advance of such payment:



	 	 	 
	 	 	Maximum Amount of
	Measurement Period Ending	 	New Hire Bonuses
	December 31, 2007
	 	$10,000,000
	December 31, 2008
	 	$7,500,000
	December 31, 2009 and thereafter
	 	$5,000,000







70











 






     (s) Subsidiary Debt. Cause or permit any Subsidiaries of the Borrower which
are neither Guarantors nor Limited Purpose Subsidiaries holding Limited Purpose Subsidiary
Assets Held For Sale securing separate financing to create, assume, incur or suffer to exist
any Debt.



     SECTION 5.03 Reporting Requirements. So long as any Advance or any other Obligation
of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the Borrower will furnish to
the Administrative Agent and the Lender Parties:




     (a) Default Notice. As soon as possible and in any event within three (3)
Business Days after the occurrence of each Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the date of such
statement, a statement of the chief financial officer of the Borrower setting forth details
of such Default and the action that the Borrower has taken and proposes to take with respect
thereto.




     (b) Annual Financials. As soon as available and in any event no later than one
(1) Business Day after the Borrower files its annual report on Form 10-K with the United
States Securities and Exchange Commission, but in no event later than 105 days after the end
of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and
its Subsidiaries on a Consolidated basis, including therein a Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Ernst & Young LLP or other independent public accountants of recognized
standing acceptable to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lender Parties stating that in the course of the regular audit of the
business of the Borrower and its Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion
of such accounting firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (ii) a Compliance Certificate showing the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Section 5.04, provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP and (iii) a
certificate of the Chief Financial Officer of the Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken and proposes to take with
respect thereto.




     (c) Quarterly Financials. As soon as available and in any event no later than
one (1) Business Day after the Borrower files its quarterly report on Form 10-Q with the
United States Securities and Exchange Commission, but in no event later than 50 days after
the end of each of the first three quarters of each Fiscal Year, a Consolidated balance
sheet of the Borrower and its
Subsidiaries as of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the end of such fiscal
quarter and a Consolidated statement of income and a Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief



71









 







Financial Officer of the Borrower as having been
prepared in accordance with GAAP, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto and (ii) a Compliance Certificate showing the
computations used by the Borrower in determining compliance with the covenants contained in
Section 5.04, provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.




     (d) Monthly Financials. Upon the request of the Administrative Agent, a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the most
recently completed month and a Consolidated statement of income and a Consolidated statement
of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of
the previous month and ending with the end of such month and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for
the period commencing at the end of the previous Fiscal Year and ending with the end of such
month, setting forth in each case in comparative form the corresponding figures for the
corresponding month of the preceding Fiscal Year, all in reasonable detail and duly
certified by the Chief Financial Officer of the Borrower.




     (e) Annual Budgets. As soon as available and in any event (i) not earlier than
60 days and no later than 30 days prior to the end of each calendar year, a draft of the
consolidated budget and (ii) not later than 30 days following the end of each calendar year,
the final consolidated budget, in each case, for the following calendar year prepared on a
quarter-by-quarter basis, and, as soon as available, significant revisions, if any, of such
budget and projections with respect to such calendar year, in form and substance
satisfactory to the Administrative Agent.




     (f) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any Governmental Authority
affecting any Loan Party or any of its Subsidiaries of the type described in Section
4.01(f), and promptly after the occurrence thereof, notice of any adverse change in the
status or the financial effect on any Loan Party or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule 4.01(f) hereto.




     (g) Securities Reports. Promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports that any Loan Party or any of its
Subsidiaries sends to its stockholders, and copies of all regular, periodic and special
reports, and all registration statements, that any Loan Party or any of its Subsidiaries
files with the Securities and Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.




     (h) Agreement Notices. (i) Promptly upon (A) receipt of any notice, request or
other document received by any Loan Party or any of its Subsidiaries under or pursuant to
any Material Contract or instrument, indenture, loan or credit or similar agreement
regarding or related to any breach or default by any party thereto or any other event that
could materially impair the value of the interests or the rights of any Loan Party or
otherwise have a Material Adverse Effect or (B) the granting of any amendment, modification
or waiver of any provision of any Material Contract or instrument, indenture, loan or credit
or similar agreement, that could materially impair the value of the interests or rights of
any Loan Party or otherwise have a Material Adverse Effect, the Company shall give written
notice to the Administrative Agent containing a detailed description



72









 







thereof, and, (ii) from
time to time upon request by the Administrative Agent, such information and reports
regarding the Material Contracts and such instruments, indentures and loan and credit and
similar agreements as the Administrative Agent may reasonably request.




     (i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in
any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the
Borrower describing such ERISA Event and the action, if any, that such Loan Party or such
ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any
records, documents or other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.




     (ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.




     (iii) Plan Annual Reports. At the time of the delivery of the
Compliance Certificate pursuant to Section 5.03(b) or promptly upon the request of
any Lender Party, copies of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan, as applicable.




     (iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event described in
clause (A) or (B).




     (j) Environmental Conditions. Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any noncompliance by any Loan
Party or any of its Restricted Subsidiaries with any Environmental Law or Environmental
Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause
any property described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.




     (p) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or prospects of any
Loan Party or any of its Restricted Subsidiaries as the Administrative Agent, or any Lender
Party through the Administrative Agent, may from time to time reasonably request.



     SECTION 5.04 Financial Covenants. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the Borrower will:




     (a) Debt/EBITDA Ratio. Maintain at all times a Debt/EBITDA Ratio of not more
than the amount set forth below for each Measurement Period set forth below:



73









 





	 	 	 	 	 
	Quarter Ending	 	Ratio
	December 31, 2007
	 	 	3.75:1.00	 
	 
	 	 	 	 
	March 31, 2008
	 	 	3.75:1.00	 
	 
	 	 	 	 
	June 30, 2008
	 	 	3.75:1.00	 
	 
	 	 	 	 
	September 30, 2008
	 	 	3.75:1.00	 
	 
	 	 	 	 
	December 31, 2008 and thereafter
	 	 	3.50:1.00	 







     (b) Interest Coverage Ratio. Maintain at all times an Interest Coverage Ratio
of not less than the amount set forth below for each Measurement Period set forth below:



	 	 	 	 	 
	Quarter Ending	 	Ratio
	December 31, 2007
	 	 	3.25:1.00	 
	 
	 	 	 	 
	March 31, 2008
	 	 	3.25:1.00	 
	 
	 	 	 	 
	June 30, 2008
	 	 	3.25:1.00	 
	 
	 	 	 	 
	September 30, 2008
	 	 	3.50:1.00	 
	 
	 	 	 	 
	December 31, 2008
	 	 	3.50:1.00	 
	 
	 	 	 	 
	March 31, 2009
	 	 	3.50:1.00	 
	 
	 	 	 	 
	June 30, 2009
	 	 	3.50:1.00	 
	 
	 	 	 	 
	September 30, 2009
	 	 	3.50:1.00	 
	 
	 	 	 	 
	December 31, 2009
	 	 	4.00:1.00	 
	 
	 	 	 	 
	March 31, 2010
	 	 	4.00:1.00	 
	 
	 	 	 	 
	June 30, 2010
	 	 	4.00:1.00	 
	 
	 	 	 	 
	September 30, 2010
	 	 	4.00:1.00	 
	 
	 	 	 	 
	December 31, 2010 and thereafter
	 	 	4.50:1.00	 







     (c) Recourse Debt/Core EBITDA Ratio. Maintain at all times a Recourse
Debt/Core EBITDA Ratio of not more than the amount set forth below for each Measurement
Period set forth below:



	 	 	 	 	 
	Quarter Ending	 	Ratio
	December 31, 2007
	 	 	2.25:1.00	 
	 
	 	 	 	 
	March 31, 2008
	 	 	2.25:1.00	 
	 
	 	 	 	 
	June 30, 2008
	 	 	2.25:1.00	 
	 
	 	 	 	 
	September 30, 2008 and thereafter
	 	 	2.00:1.00	 







     (d) Core EBITDA. Maintain at all times Core EBITDA of the Borrower and its
Restricted Subsidiaries of not less than $60,000,000.



74









 






     (e) Fixed Charge Coverage Ratio. Maintain at all times a Consolidated Fixed
Charge Coverage Ratio of not less than 1.25:1.00.




     (f) Minimum Liquidity. Maintain at all times Liquidity of at least
$25,000,000.



ARTICLE VI




EVENTS OF DEFAULT




     SECTION 6.01 Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:




     (a) (i) the Borrower shall fail to pay any principal of any Advance when the same shall
become due and payable or (ii) the Borrower shall fail to pay any interest on any Advance,
or any Loan Party shall fail to make any other payment under any Loan Document, in each case
under this clause (ii) within three days after the same shall become due and payable; or




     (b) any representation or warranty made by any Loan Party (or any of its officers)
under or in connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or




     (c) the Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 2.14, 5.01(e) or (j), 5.02, 5.03(a), (b), (c), (e), (i) or (k) or 5.04;
or




     (d) any Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for 10 Business Days after the earlier of the date on which
(i) any officer of a Loan Party becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent or any Lender Party; or




     (e) any Loan Party or any of its Subsidiaries shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any Debt of such Loan Party
or such Subsidiary that is outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $1,000,000 either individually or in the
aggregate for all such Loan Parties and Subsidiaries (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the stated maturity
thereof; or




     (f) any Loan Party or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against



75









 







any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar official for it
or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or unstayed for a period of 30
days or any of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or any substantial part of its property) shall occur; or
any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any
of the actions set forth above in this subsection (f); or




     (g) any judgments or orders, either individually or in the aggregate, for the payment
of money in excess of $1,000,000 shall be rendered against any Loan Party or any of its
Restricted Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any such judgment or
order shall not give rise to an Event of Default under this Section 6.01(g) if and for so
long as (A) the amount of such judgment or order is covered by a valid and binding policy of
insurance between the defendant and the insurer, which shall be rated at least “A” by A.M.
Best Company, covering full payment thereof and (B) such insurer has been notified, and has
not disputed the claim made for payment, of the amount of such judgment or order; or




     (h) any non-monetary judgment or order shall be rendered against any Loan Party or any
of its Restricted Subsidiaries that is reasonably likely to have a Material Adverse Effect,
and there shall be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
or




     (i) any provision of any Loan Document after delivery thereof pursuant to Section 3.01
or 5.01(j) shall for any reason cease to be valid and binding on or enforceable against any
Loan Party party to it, or any such Loan Party shall so state in writing; or




     (j) any Collateral Document or financing statement after delivery thereof pursuant to
Section 3.01 or 5.01(j) shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or




     (k) an “Event of Default” (as defined in any Mortgage) shall have occurred and be
continuing; or




     (l) a Change of Control shall occur; or




     (m) any ERISA Event shall have occurred with respect to a Plan and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $1,000,000; or



76









 






     (n) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in
an amount that, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $1,000,000 or requires payments exceeding $250,000
per annum; or




     (o) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates
to all Multiemployer Plans that are then in reorganization or being terminated have been or
will be increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $250,000; or




     (p) there shall occur any Material Adverse Change;


then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender
Party and the obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by the Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and Swing
Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b)) and of the Issuing Bank to
issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower, and (B) by notice to each party required under the terms of any agreement
in support of which a Letter of Credit is issued, request that all Obligations under such agreement
be declared to be due and payable; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (x)
the Commitments of each Lender Party and the obligation of each Lender Party to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b))
and of the Issuing Bank to issue Letters of Credit shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.




     SECTION 6.02 Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the Administrative Agent
may, or shall at the request of the Required Lenders, irrespective of whether it is taking any of
the actions described in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith
upon such demand the Borrower will, pay to the Administrative Agent on behalf of the Lender Parties
in same day funds at the Administrative Agent’s Office, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding; provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Law, the Borrower will pay to the
Administrative Agent on behalf of the Lender Parties in same day funds at the Administrative
Agent’s Office, for deposit in the L/C Cash Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the Borrower. If at any



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time
the Administrative Agent determines that any funds held in the L/C Collateral Account are subject
to any right or claim of any Person other than the Administrative Agent and the Lender Parties or
that the total amount of such funds is less than the aggregate Available Amount of all Letters of
Credit, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Collateral Account that the Administrative Agent determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which
funds are on deposit in the L/C Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Revolving Credit Lenders, as applicable, to the extent permitted by applicable law.
After each Letter of Credit issued hereunder expires or terminates without being drawn upon,
and/or after the Letter of Credit Advances with respect to each Letter of Credit have been paid,
amounts on deposit in the L/C Collateral Account (if any) shall be applied by the Administrative
Agent to pay other outstanding amounts due under the Loan Documents or shall be returned to the
Borrower.



ARTICLE VII




THE ADMINISTRATIVE AGENT




     SECTION 7.01 Authorization and Action. (a) Each Lender Party (in its capacities as a
Lender, the Swing Line Bank (if applicable), the Issuing Bank (if applicable) and on behalf of
itself and its Affiliates as potential Hedge Banks) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; provided, however, that no Administrative Agent shall be required
to take any action that exposes the Administrative Agent to personal liability or that is contrary
to this Agreement or applicable law. The Administrative Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.




     (b) In furtherance of the foregoing, each Lender Party (in its capacities as a Lender, the
Swing Line Bank (if applicable), the Issuing Bank (if applicable) and on behalf of itself and its
Affiliates as potential Hedge Banks) hereby appoints and authorizes the Administrative Agent to act
as the agent of such Lender Party for purposes of acquiring, holding and enforcing any and all
Liens
on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations,
together with such powers and discretion as are reasonably incidental thereto. In this connection,
the Administrative Agent (and any Supplemental Collateral Agent appointed by the Administrative
Agent pursuant to Section 7.01(c) for purposes of holding or enforcing any Lien on the Collateral
(or any portion thereof) granted under the Collateral Documents, or for exercising any rights or
remedies thereunder at the direction of the Administrative Agent), shall be entitled to the
benefits of this Article VII (including, without limitation, Section 7.05 as though such
Supplemental Collateral Agent was the “Administrative Agent” under the Loan Documents) as if set
forth in full herein with respect thereto.




     (c) The Administrative Agent may execute any of its duties under this Agreement or any other
Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents or of exercising any rights and remedies
thereunder at the direction of the Administrative Agent) by or through agents, employees or



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attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent may also from time to
time, when the Administrative Agent deems it to be necessary or desirable, appoint one or more
trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a
“Supplemental Collateral Agent”) with respect to all or any part of the Collateral; provided,
however, that no such Supplemental Administrative Agent shall be authorized to take any action with
respect to any Collateral unless and except to the extent expressly authorized in writing by the
Administrative Agent. Should any instrument in writing from the Borrower or any other Loan Party
be required by any Supplemental Collateral Agent so appointed by the Administrative Agent to more
fully or certainly vest in and confirm to such Supplemental Collateral Agent such rights, powers,
privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by the Administrative Agent. If any
Supplemental Collateral Agent, or successor thereto, shall die, become incapable of acting, resign
or be removed, all rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall automatically vest in and be exercised by the Administrative
Agent until the appointment of a new Supplemental Collateral Agent. No Administrative Agent shall
be responsible for the negligence or misconduct of the Administrative Agent, attorney-in-fact or
Supplemental Collateral Agent that it selects in accordance with the foregoing provisions of this
Section 7.01(c) in the absence of the Administrative Agent’s gross negligence or willful
misconduct.



     SECTION 7.02 Administrative Agent’s Reliance, Etc. Neither the Administrative Agent
nor any of its respective directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan Documents, except
for its or their own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (a) may treat the payee of any Note as the holder
thereof until, in the case of the Administrative Agent, the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other Administrative Agent,
the Administrative Agent has received notice from the Administrative Agent that it has received and
accepted such Assignment and Acceptance, in each case as provided in Section 8.07; (b) may consult
with legal counsel (including counsel for any Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to any Lender Party for
any statements, warranties or representations (whether written or oral) made in or in connection
with the Loan Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan
Document on the part of any Loan
Party or the existence at any time of any Default under the Loan Documents or to inspect the
property (including the books and records) of any Loan Party; (e) shall not be responsible to any
Lender Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, any Loan Document or any other instrument or document
furnished pursuant thereto; and (f) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or writing (which may
be by telegram, telecopy or attached to electronic mail) believed by it to be genuine and signed or
sent by the proper party or parties.



     SECTION 7.03 DBTCA and Affiliates. With respect to its Commitments, the Advances made
by it and the Notes issued to it, DBTCA shall have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as though it were not the
Administrative Agent; and the term “Lender Party” or “Lender Parties” shall, unless otherwise
expressly indicated, include DBTCA in its individual capacity. DBTCA and its affiliates may accept
deposits from, lend money to, act as



79









 







trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person that may do business with or own securities of any Loan Party or any
such Subsidiary, all as if DBTCA was not the Administrative Agent and without any duty to account
therefor to the Lender Parties. The Administrative Agent shall not have any duty to disclose any
information obtained or received by it or any of its Affiliates relating to any Loan Party or any
of its Subsidiaries to the extent such information was obtained or received in any capacity other
than as the Administrative Agent.



     SECTION 7.04 Lender Party Credit Decision. Each Lender Party acknowledges that it
has, independently and without reliance upon the Administrative Agent or any other Lender Party and
based on the financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender Party also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender Party 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.



     SECTION 7.05 Indemnification. (a) Each Lender Party severally agrees to indemnify
the Administrative Agent (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party’s ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Administrative Agent under the Loan Documents (collectively, the
“Indemnified Costs”); provided, however, that no Lender Party shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that the Administrative Agent is not promptly reimbursed for such costs and expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any Lender Party or any
other Person.




     (b) Each Lender Party severally agrees to indemnify the Issuing Bank (to the extent not
promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share (determined
as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Issuing Bank under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Issuing Bank’s gross negligence or willful misconduct as found in
a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the
foregoing, each Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.




     (c) For purposes of this Section 7.05, the Lender Parties’ respective ratable shares of any
amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount
of the Advances outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro




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Rata Shares of the aggregate Available Amount of all Letters of Credit outstanding at such time and
(iii) their respective Unused Revolving Credit Commitments at such time, provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to the Issuing Bank shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit Commitments. The failure of
any Lender Party to reimburse the Administrative Agent or the Issuing Bank, as the case may be,
promptly upon demand for its ratable share of any amount required to be paid by the Lender Parties
to the Administrative Agent or the Issuing Bank, as the case may be, as provided herein shall not
relieve any other Lender Party of its obligation hereunder to reimburse the Administrative Agent or
the Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to reimburse the Administrative
Agent or the Issuing Bank, as the case may be, for such other Lender Party’s ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender Party hereunder,
the agreement and obligations of each Lender Party contained in this Section 7.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder and under the other
Loan Documents.




     SECTION 7.06 Successor Administrative Agents. The Administrative Agent may resign as
to any or all of the Facilities at any time by giving written notice thereof to the Lender Parties
and the Borrower and may be removed as to all of the Facilities at any time with or without cause
by the Required Lenders; provided, however, that any removal of the Administrative Agent will not
be effective until it has also been replaced as Swing Line Bank and Letter of Credit Issuing Bank
and released from all of its obligations in respect thereof. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to all of the Facilities and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the Facilities and upon
the execution and filing or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to continue the perfection
of the Liens granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent as to such Facilities, other than with
respect to funds transfers and other similar aspects of the administration of Borrowings under such
Facilities, issuances of Letters of Credit (notwithstanding any resignation as Administrative Agent
with respect to the Letter of Credit Facility) and payments by the Borrower in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid. If within 45 days
after written notice is given of the retiring Administrative Agent’s resignation or removal under this Section 7.06 no successor
Administrative Agent shall have been appointed and shall have accepted such



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appointment, then on such 45th day (a) the retiring Administrative Agent’s resignation or removal shall
become effective, (b) the retiring Administrative Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter
perform all duties of the retiring Administrative Agent under the Loan Documents until such time,
if any, as the Required Lenders appoint a successor Administrative Agent as provided above. After
any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent as to
any of the Facilities shall have become effective, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent as to such Facilities under this Agreement.




ARTICLE VIII




GUARANTY




     SECTION 8.01 Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or
in respect of the Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct
or indirect, absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or any other Secured Party in
enforcing any rights under this Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party
under or in respect of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such
other Loan Party.



          (b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party, hereby confirms that it is the intention of all such Persons that this
Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing
intention, the Administrative Agent, the other Secured Parties and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be
limited to the maximum amount as will result in the Obligations of such Guarantor under this
Guaranty not constituting a fraudulent transfer or conveyance.




          (c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.




          (d) Each Guarantor hereby unconditionally and irrevocably waives any right (including without
limitation any such right arising under California Civil Code Section 2815) to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.




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          (e) Each Guarantor hereby unconditionally and irrevocably waives (i) any and all rights and
defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the
California Civil Code, including without limitation any and all rights or defenses such Guarantor
may have by reason of protection afforded to the principal with respect to any of the Guaranteed
Obligations, or to any other guarantor of any of the Guaranteed Obligations with respect to any of
such guarantor’s obligations under its guaranty, in either case pursuant to the antideficiency or
other laws of the State of California limiting or discharging the principal’s indebtedness or such
guarantor’s obligations, including without limitation Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure, (ii) any defense arising by reason of any claim or defense
based upon an election of remedies by the Administrative Agent or any other Secured Party that in
any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or
any other Person or any collateral and (iii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor hereunder. No other
provision of the Guaranty shall be construed as limiting the generality of any of the covenants and
waivers set forth in this paragraph. As provided below, this Guaranty shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of New York. This
paragraph is included solely out of an abundance of caution, and shall not be construed to mean
that any of the above-referenced provisions of California law are in any way applicable to this
Guaranty or to any of the Guaranteed Obligations.




          (f) Each Guarantor waives any claim, right or remedy, direct or indirect, that such Guarantor
now has or may hereafter have against any Loan Party or any of its assets in connection with this
Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute (including without
limitation under California Civil Code Section 2847, 2848 or 2849), under common law or otherwise
and including without limitation (a) any right of subrogation, reimbursement or indemnification
that such Guarantor now has or may hereafter have against any such Loan Party, (b) any right to
enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may
hereafter have against any Loan Party, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Secured Party.




          (g) Each Guarantor acknowledges that the Administrative Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Secured Parties against such Guarantor of
any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law (including, without limitation, Sections 580a and 580d of the California Code of
Civil Procedure or any other law of any other jurisdiction having similar effect).




     SECTION 8.02 Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Secured Party with respect thereto. The Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against the Borrower or
any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action
or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now
have or hereafter acquire in any way relating to, any or all of the following:



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     (a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the Guaranteed Obligations;




     (d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents or any other
assets of any Loan Party or any of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;




     (f) any failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Secured Party
(each Guarantor waiving any duty on the part of the Secured Parties to disclose such
information);




     (g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement or any other guaranty or agreement or the release or reduction of liability of
any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.




     SECTION 8.03 Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of nonperformance, default,
acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Secured Party protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right or take any action against
any Loan Party or any other Person or any Collateral.



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          (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.




          (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person
or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of such Guarantor hereunder.




          (d) Each Guarantor acknowledges that the Administrative Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Secured Parties against such Guarantor of
any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.




          (e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party.




          (f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.




     SECTION 8.04 Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower,
any other Loan Party or any other insider guarantor that arise from the existence, payment,
performance or enforcement of such Guarantor’s Obligations under or in respect of this Guaranty or
any other Loan Document, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any claim or remedy of
any Secured Party against the Borrower, any other Loan Party or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from the Borrower, any
other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of expiration or
termination of all Letters of Credit and all Secured Hedge Agreements, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement or assignment) to be credited
and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as
Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) any Guarantor shall make payment to any Secured Party of all or any part of the
Guaranteed



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Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, (iii) the Termination Date shall have occurred
and (iv) all Letters of Credit and all Secured Hedge Agreements shall have expired or been
terminated, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver
to such Guarantor appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.




     SECTION 8.05 Guaranty Supplements. Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit E hereto (each, a “Guaranty Supplement”),
(a) such Person shall be referred to as an “Additional Guarantor” and shall become and be a
Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan Document to a
"Guarantor” shall also mean and be a reference to such Additional Guarantor, and (b) each reference
herein to “ this Guaranty”, “hereunder”, “hereof” or words of like import referring to this
Guaranty, and each reference in any other Loan Document to the “Guaranty”, “thereunder”, “thereof”
or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty
as supplemented by such Guaranty Supplement.



     SECTION 8.06 Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to such Guarantor by each other Loan Party (the
"Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 8.06:




     (a) Prohibited Payments, Etc. Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor may receive payments from any other Loan
Party on account of the Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), however, unless the Required
Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any
payment on account of the Subordinated Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Secured
Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post
Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Secured Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post Petition Interest), together with
any necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other provisions of this
Guaranty.




     (d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), the Administrative Agent is



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authorized and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post Petition
Interest).



     SECTION 8.07 Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the
Termination Date and (iii) the latest date of expiration or termination of all Letters of Credit
and all Secured Hedge Agreements, (b) be binding upon the Guarantor, its successors and assigns and
(c) inure to the benefit of and be enforceable by the Secured Parties and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, any Secured Party may assign or otherwise transfer all or any portion of its
rights and obligations under this Agreement (including, without limitation, all or any portion of
its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in respect thereof
granted to such Secured Party herein or otherwise, in each case as and to the extent provided in
Section 9.07. No Guarantor shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Secured Parties.



ARTICLE IX




MISCELLANEOUS




     SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes or any other Loan Document, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing and signed (or, in
the case of the Collateral Documents, consented to) by the Required Lenders (other than Defaulting
Lenders), and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that (a) no amendment, waiver or consent
shall, unless in writing and signed by all of the Lender Parties (other than any Lender Party that
is, at such time, a Defaulting Lender), do any of the following at any time: (i) waive any of the
conditions specified in Section 3.02, (ii) change the number of Lenders or the percentage of (x)
the Commitments, (y) the aggregate unpaid principal amount of the Advances or (z) the
aggregate Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii) reduce or limit the
obligations of any Guarantor under Section 8.01 or release such Guarantor or otherwise limit such
Guarantor’s liability with respect to the Obligations owing to the Administrative Agent and the
Lender Parties, (iv) release all or substantially all of the Collateral in any transaction or
series of related transactions or permit the creation, incurrence, assumption or existence of any
Lien on all or substantially all of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the Secured Parties under
the Loan Documents, (v) amend Section 2.13 or this Section 9.01, (vi) increase the Commitments of
the Lenders, (vii) reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (viii) except as otherwise provided in Section 2.17, postpone any date scheduled
for any payment of principal of, or interest on, the Notes pursuant to Section 2.04 or 2.07 or any
date fixed for payment of fees or other amounts payable hereunder, or (ix) limit the liability of
any Loan Party under any of the Loan Documents and (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender (other than any Lender that
is, at such time, a Defaulting Lender) that has a Commitment under, or is owed any amounts under or
in respect of, the Revolving Credit Facility if such Lender is directly and



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adversely affected by such amendment, waiver or consent: (i) increase the Commitments of such Lender; (ii) reduce the
principal of, or stated rate of interest on, the Notes held by such Lender or any fees or other
amounts stated to be payable hereunder to such Lender; or (iii) postpone any date scheduled for any
payment of principal of, or interest on, the Notes pursuant to Section 2.04 or 2.07 or any date
fixed for any payment of fees hereunder or any Guaranteed Obligations payable under the
Subsidiaries Guaranty; provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in addition to
the Lenders required above to take such action, affect the rights or obligations of the Swing Line
Bank or of the Issuing Banks, as the case may be, under this Agreement, and provided further that
no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or the other Loan Documents.




     SECTION 9.02 Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or electronic mail communication)
and mailed, telegraphed, telecopied, sent by electronic mail (with an electronic attachment
containing a hand-written signature and with immediate confirmation by mail, telephone or
telecopier) or delivered, if to the Borrower, at its address at 2215 Sanders Road, Suite 400,
Northbrook, Illinois 60062, Attention: Chief Financial Officer, telecopier number (847) 753-9071
(with a copy to the General Counsel following written notice of such request by the Borrower to the
other parties); if to any Guarantor, at its address at c/o Grubb & Ellis Company, 2215 Sanders
Road, Suite 400, Northbrook, Illinois 60062, Attention: Chief Financial Officer, telecopier number
(847) 753-9071, (with a copy to the General Counsel of Grubb & Ellis Company following written
notice of such request by a Guarantor to the other parties); if to any Initial Lender Party, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which
it became a Lender Party; and if to the Administrative Agent, at its address at 60 Wall Street, New
York, New York 10005, Attention:  Linda Wang, telecopier number (646) 324-7450; or, as to any
party, at such other address as shall be designated by such party in a written notice to the other
parties. All such notices and other communications shall, when mailed or telecopied, be effective
when deposited in the mails or transmitted by telecopier, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII shall not be
effective until received by the Administrative Agent. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any provision of this Agreement or
the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.



     SECTION 9.03 No Waiver; Remedies. No failure on the part of any Lender Party or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.



     SECTION 9.04 Costs and Expenses. (a) The Borrower agrees to pay on demand (i) all
reasonable costs and expenses of the Lead Arranger and the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment of, or any consent
or waiver under, the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses
of counsel for the Lead Arranger and the Administrative Agent with respect thereto (including,
without limitation, with respect to reviewing and advising on matters required to be completed by
the Loan Parties on a post-closing basis), with respect to advising the Administrative Agent as to
its rights and responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations



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with any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors’ rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses
of the Lead Arranger and the Administrative Agent and each Lender Party in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors’ rights generally (including, without
limitation, the reasonable fees and expenses of counsel for the Lead Arranger and the
Administrative Agent and each Lender Party with respect thereto).




          (b) The Borrower agrees to indemnify, defend and save and hold harmless the Lead Arranger, the
Administrative Agent, each Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and
shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby or (ii) the actual or alleged presence of Hazardous Materials
on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating
in any way to any Loan Party or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or
an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated by this Agreement are consummated. The
Borrower also agrees not to assert any claim against the Administrative Agent, any Lender Party or
any of their Affiliates, or any of their respective officers, directors, employees, agents and
advisors, on any theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed use of the proceeds of the
Advances or the Letters of Credit, the Loan Documents or any of the transactions contemplated by
the Loan Documents.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
the Borrower to or for the account of a Lender Party other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.06,
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or if the Borrower fails to make any payment or prepayment of an Advance for
which a notice of prepayment has been given or that is otherwise required to be made, whether
pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay, as the case may be, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.




          (d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, fees and expenses of counsel and




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indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or
any Lender Party, in its sole discretion.




          (e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrower contained in
Sections 2.10 and 2.12 and this Section 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under any of the other Loan Documents.




     SECTION 9.05 Right of Set-off. Upon (a) the occurrence and during the continuance of
any Event of Default and (b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Notes due and payable pursuant to
the provisions of Section 6.01, the Administrative Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by the
Administrative Agent, such Lender Party or such Affiliate to or for the credit or the account of
the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether the Administrative Agent or such Lender Party shall
have made any demand under this Agreement or such Note or Notes and although such Obligations may
be unmatured. The Administrative Agent and each Lender Party agrees promptly to notify the
Borrower after any such set-off and application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender Party and their respective Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other rights of set-off)
that the Administrative Agent, such Lender Party and their respective Affiliates may have.



     SECTION 9.06 Binding Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and the Administrative Agent shall have
been notified by each Initial Lender Party that such Initial Lender Party has executed it and
thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lender Parties.



     SECTION 9.07 Assignments and Participations. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and obligations under and in
respect of any or all Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund
of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement,
the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 and shall be in an integral multiple of
$500,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of such assignment, the
Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment
shall be to an Eligible Assignee, (iv) no such assignments shall be permitted without the consent
of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties
that syndication of the Commitments hereunder has been completed and (v) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500.



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          (b) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case
may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the
extent any claim thereunder relates to an event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and
obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).




          (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor
thereunder and each assignee thereunder confirm to and agree with each other and the other parties
thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, any Loan Document or any other instrument or document
furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of the financial statements referred to
in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender Party or any other Lender Party 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) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are
delegated to the Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender or Issuing Bank, as the case may be.




          (d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy
of each Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and the Commitment under each Facility
of, and principal amount of the Advances owing under each Facility to, each Lender Party from time
to time (the “Register”). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lender Parties
may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all
purposes of this Agreement. The Register shall be available for inspection by the Borrower or the
Administrative Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.




          (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and
an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained




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therein in the Register and (iii) give prompt notice thereof to the Borrower and each other
Administrative Agent. In the case of any assignment by a Lender, within five Business Days after
its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder
under such Facility, a new Note to the order of such assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated
the effective date of such Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit A hereto.




          (f) The Issuing Bank may assign to an Eligible Assignee not less than all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided,
however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a processing and recordation
fee of $3,500.




          (g) Each Lender Party may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing
to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s
obligations under this Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lender Parties shall continue to
deal solely and directly with such Lender Party in connection with such Lender Party’s rights
and obligations under this Agreement and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or release all or
substantially all of the Collateral.




          (h) Any Lender Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant
or proposed assignee or participant any information relating to the Borrower furnished to such
Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve
the confidentiality of any Confidential Information received by it from such Lender Party.




          (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at
any time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.




          (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that
invests in bank loans may create a security interest in all or any portion of the Advances owing to
it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities
issued, by such fund as security for such obligations or securities, provided, that unless and
until such trustee



92









 






actually becomes a Lender in compliance with the other provisions of this
Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights
of a Lender under the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.




          (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting
Lender") may grant to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to
provide all or any part of any Advance that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by
any SPC to fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii)
no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs
protection provision) and (iii) the Granting Bank shall for all purposes, including, without
limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain
the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that, prior to the date
that is one year and one day after the payment in full of all outstanding commercial paper or other
senior Debt of any SPC, it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative Agent and with the
payment of a processing fee of $500, assign all or any portion of its interest in any Advance to
the Granting Lender and (ii) disclose on a confidential basis any non-public information relating
to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be
amended without the prior written consent of each Granting Lender, all or any part of whose
Advances are being funded by the SPC at the time of such amendment.




     SECTION 9.08 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of this Agreement.



     SECTION 9.09 No Liability of the Issuing Banks. The Borrower assumes all risks of the
acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use
of such Letter of Credit. Neither the Issuing Bank nor any of its officers or directors shall be
liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by the Issuing
Bank against presentation of documents that do not comply with the terms of a Letter of Credit,
including failure of any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any



93









 




direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) the Issuing Bank’s
willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court
of competent jurisdiction in determining whether documents presented under any Letter of Credit
comply with the terms of the Letter of Credit or (ii) the Issuing Bank’s willful failure to make
lawful payment under a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not
in limitation of the foregoing, the Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary.




     SECTION 9.10 Confidentiality; Patriot Act. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Administrative Agent’s or such Lender Party’s Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state, Federal or foreign
authority or examiner (including the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to any rating agency
when required by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information relating to the Loan
Parties received by it from such Lender Party, (e) in connection with any litigation or proceeding
to which the Administrative Agent or such Lender Party or any of its Affiliates may be a party or (f) in
connection with the exercise of any right or remedy under this Agreement or any other Loan
Document. Each of the Lenders hereby notifies each Loan Party that, pursuant to the requirements
of the Patriot Act, it is required to obtain, verify and record information that identifies each
Loan Party, which information includes names and addresses and other information that will allow it
to identify each Loan Party in accordance with the Patriot Act.



     SECTION 9.11 Release of Collateral. Upon the sale, lease, transfer or other
disposition of any item of Collateral of any Loan Party in accordance with the terms of the Loan
Documents, the Administrative Agent will, at the Borrower’s expense, execute and deliver to such
Loan Party such documents as such Loan Party may reasonably request to evidence the release of such
item of Collateral from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents. Notwithstanding anything herein to the
contrary, in connection with the granting of a Lien contemplated by Section 5.02(a)(x), the
Administrative Agent may, in its reasonable discretion, release or subordinate the Lien granted in
favor of the Administrative Agent on behalf of the Lenders in accordance with Section
5.01(j)(viii).



     SECTION 9.12 Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
any such New York State court or, to the fullest extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction.



          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying




94









 




of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of
the other Loan Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.




     SECTION 9.13 Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.



     SECTION 9.14 Waiver of Jury Trial. Each of the Borrower, the Administrative Agent and
the Lender Parties irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to any of
the Loan Documents, the Advances, the Letters of Credit or the actions of the Administrative Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof



[Signature Pages Follow]





95












 





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




	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS COMPANY
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS AFFILIATES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MANAGEMENT SERVICES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF ARIZONA, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS ASSET SERVICES COMPANY
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS CONSULTING

SERVICES COMPANY
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS INSTITUTIONAL PROPERTIES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF MICHIGAN, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MORTGAGE GROUP, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF NEVADA, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS NEW YORK, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS ADVISERS OF CALIFORNIA, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS SOUTHEAST

PARTNERS, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	HSM INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WM. A. WHITE/GRUBB & ELLIS INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	LANDAUER HOSPITALITY

INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	LANDAUER SECURITIES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MANAGEMENT

SERVICES OF MICHIGAN, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	NNN REALTY ADVISORS, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	TRIPLE NET PROPERTIES LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	TRIPLE NET PROPERTIES REALTY INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	NNN RESIDENTIAL MANAGEMENT INC.
	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY
	 

	 	 	 	AMERICAS, as Administrative
Agent, Initial Lender,
Initial Issuing Bank and Swing Line Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: