exv10w61






Exhibit 10.61




 





$67,289,245




THIRD AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




May 18, 2009,




Among




GRUBB & ELLIS COMPANY,




as the Borrower,




THE GUARANTORS NAMED HEREIN,




as
Guarantors,


THE LENDERS 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 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
	 	 	24	 
	SECTION 1.03              Accounting Terms
	 	 	24	 
	 
	 	 	 	 
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01              The Advances and the Letters of Credit
	 	 	25	 
	SECTION 2.02              Making the Advances
	 	 	26	 
	SECTION 2.03              Issuance of and Drawings and Reimbursement Under Letters of Credit
	 	 	27	 
	SECTION 2.04              Repayment of Advances
	 	 	29	 
	SECTION 2.05              Termination or Reduction of the Commitments
	 	 	30	 
	SECTION 2.06              Prepayments
	 	 	30	 
	SECTION 2.07              Interest
	 	 	33	 
	SECTION 2.08              Fees
	 	 	34	 
	SECTION 2.09              Conversion of Advances
	 	 	34	 
	SECTION 2.10              Increased Costs, Etc
	 	 	35	 
	SECTION 2.11              Payments and Computations
	 	 	36	 
	SECTION 2.12              Taxes
	 	 	37	 
	SECTION 2.13              Sharing of Payments, Etc
	 	 	39	 
	SECTION 2.14              Use of Proceeds
	 	 	39	 
	SECTION 2.15              Defaulting Lenders
	 	 	40	 
	SECTION 2.16              Evidence of Obligations
	 	 	42	 
	SECTION 2.17              Extension of Termination Date
	 	 	43	 
	SECTION 2.18              Lender Pro Rata Shares
	 	 	43	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS OF LENDING
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01              Conditions Precedent
	 	 	43	 
	SECTION 3.02              Conditions Precedent to Each Borrowing and any Extension
	 	 	47	 
	SECTION 3.03              Determinations Under Section 3.01
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01              Representations and Warranties of the Borrower
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V COVENANTS OF THE BORROWER
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01              Affirmative Covenants
	 	 	54	 
	SECTION 5.02              Negative Covenants
	 	 	60	 
	SECTION 5.03              Reporting Requirements
	 	 	68	 
	SECTION 5.04              [Intentionally Omitted]
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VI EVENTS OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01              Events of Default
	 	 	72	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	 
	SECTION 6.02              Actions in Respect of the Letters of Credit upon Default
	 	 	75	 
	 
	 	 	 	 
	ARTICLE VII THE Administrative Agent
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01              Authorization and Action
	 	 	75	 
	SECTION 7.02              Administrative Agent’s Reliance, Etc
	 	 	76	 
	SECTION 7.03              DBTCA and Affiliates
	 	 	77	 
	SECTION 7.04              Lender Party Credit Decision
	 	 	77	 
	SECTION 7.05              Indemnification
	 	 	77	 
	SECTION 7.06              Successor Administrative Agents
	 	 	78	 
	 
	 	 	 	 
	ARTICLE VIII GUARANTY
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01              Guaranty; Limitation of Liability
	 	 	79	 
	SECTION 8.02              Guaranty Absolute
	 	 	81	 
	SECTION 8.03              Waivers and Acknowledgments
	 	 	82	 
	SECTION 8.04              Subrogation
	 	 	82	 
	SECTION 8.05              Guaranty Supplements
	 	 	83	 
	SECTION 8.06              Subordination
	 	 	83	 
	SECTION 8.07              Continuing Guaranty; Assignments
	 	 	84	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01              Amendments, Etc
	 	 	84	 
	SECTION 9.02              Notices, Etc
	 	 	85	 
	SECTION 9.03              No Waiver; Remedies
	 	 	85	 
	SECTION 9.04              Costs and Expenses
	 	 	86	 
	SECTION 9.05              Right of Set-off
	 	 	87	 
	SECTION 9.06              Binding Effect
	 	 	87	 
	SECTION 9.07              Assignments and Participations
	 	 	87	 
	SECTION 9.08              Execution in Counterparts
	 	 	90	 
	SECTION 9.09              No Liability of the Issuing Bank
	 	 	91	 
	SECTION 9.10              Confidentiality; Patriot Act
	 	 	91	 
	SECTION 9.11              Release of Collateral
	 	 	91	 
	SECTION 9.12              Jurisdiction, Etc.
	 	 	91	 
	SECTION 9.13              Governing Law
	 	 	92	 
	SECTION 9.14              Waiver of Jury Trial
	 	 	92	 






ii









 






	 	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule I

	 	-
	 	Commitments, Pro Rata Shares and Applicable Lending Offices
	Schedule II

	 	-
	 	Guarantors
	Schedule III

	 	-
	 	Existing Letters of Credit
	Schedule IV

	 	-
	 	Real Property Assets
	Schedule V

	 	-
	 	Recapitalization Plan
	Schedule VI

	 	-
	 	Cash Flow Projections
	Schedule VII

	 	-
	 	Initial Approved Budget
	Schedule 2.06(e)(iii)

	 	-
	 	Mandatory Amortization Payment
	Schedule 3.01(a)(ii)(F)

	 	-
	 	UCC-1 Financing Statements to be Terminated
	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 4.01(bb)

	 	-
	 	Non-Guarantor Subsidiaries
	Schedule 4.01(cc)

	 	-
	 	Contingent Obligations
	Schedule 4.01(dd)

	 	-
	 	TIC Investments
	Schedule 4.01(ee)

	 	-
	 	Inactive Subsidiaries
	Schedule 5.01(r)(i)

	 	-
	 	Post Closing Account Control Agreement Accounts
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	Exhibit A

	-
	Form of Revolving Credit Note
	Exhibit B

	-
	Form of Notice of Borrowing
	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 Budget Reconciliation and Cash Flow Variance Report
	Exhibit I

	-
	Form of Lender Warrants
	Exhibit J

	-
	Form of Opinion with Respect to Lender Warrants
	Exhibit K

	-
	Form of Post Closing Opinion of Special Counsel to the Loan Parties






iii









 






THIRD AMENDED AND RESTATED CREDIT AGREEMENT




          THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 18, 2009 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 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 Second Amended and Restated Credit Agreement dated as of December
7, 2007, as amended by (i) that certain First Letter Amendment dated as of August 4, 2008, and (ii)
that certain Second Letter Amendment dated as of September 30, 2008 (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 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, and the lenders party to the
Existing Agreement desire to amend and restate the Existing Agreement to modify the terms and
covenants of the credit facility provided thereunder.



          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.



          “Adjusted Excess Cash Flow” means, for any period, an amount equal to (a) Consolidated EBITDA
attributable to such period less (b) Fixed Charges attributable to 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 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 Third 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 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 equal to (i)
for Base Rate Advances, (a) from the Effective Date until the date on which a recapitalization
transaction is consummated in accordance with the Recapitalization Plan, 7.00% per annum, and (b)
after the date on which a recapitalization transaction is completed in accordance with the
Recapitalization Plan, 3.00% per annum; provided, however, that if the Borrower shall fail to
consummate a recapitalization transaction by the Mandatory Amortization Date in accordance with the
Recapitalization Plan, then the Applicable Margin shall be 11.00% per annum effective as of the
Mandatory Amortization Date, and (ii) for Eurodollar Rate Advances, (a) from the Effective Date
until the date on which a recapitalization transaction is consummated in accordance with the
Recapitalization Plan, 8.00% per annum, and (b) after the date on which a recapitalization
transaction is completed in accordance with the Recapitalization Plan, 4.00% per annum; provided,
however, that if the Borrower shall fail to consummate a recapitalization transaction by the
Mandatory Amortization Date in accordance with the Recapitalization Plan, then the Applicable
Margin shall be 12.00% per annum effective as of the Mandatory Amortization Date.



2









 





          “Applicable Paydown Percentage” means (i) prior to the date on which the aggregate principal
amount of outstanding Revolving Credit A Advances does not exceed $10,710,755, 100%, and (ii) from
and after such date, 50%.



          “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, or (b) the Letter of
Credit Facility, (i) the Issuing Bank and (ii) if the other Revolving Credit B 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 B Lender.



          “Approved Budget” has the meaning specified in Section 5.03(f).



          “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.



          “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).



          “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 highest 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);




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




     (c) 1% per annum above the Eurodollar 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.



3









 





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



          “Borrowing” means a Revolving Credit Borrowing.



          “Breakage Indemnity Letter” means a letter from Borrower to the Administrative Agent delivered
contemporaneously with the Notice of Borrowing given hereunder with respect to the initial
Borrowing and addressing the obligation of the Borrower to pay breakage costs under certain
circumstances described therein.



          “Budget Non-Compliance Event” has the meaning specified in Section 5.03(e).



          “Budget Reconciliation and Cash Flow Variance Report” has the meaning specified in
Section 5.03(e).



          “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 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,



4









 







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.



          “Cash Flow Projections” means the cash flow projections for the Borrower specified on Schedule
VI hereto.



          “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) 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% (or more than 50%
in connection with implementation of the Recapitalization Plan) of the voting power for the
election of 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
Account Control Ratifications, 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, provided that any such advances shall be made only in accordance with the
Approved Budget.



          “Commitment” means a Revolving Credit Commitment or a Letter of Credit Commitment.



5









 





          “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.



          “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 Subsidiaries for such Measurement
Period, as determined on a consolidated basis in accordance with GAAP, less the consolidated net
income of any Divested Entity on a pro forma basis 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 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 (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest and (b) the undistributed earnings of any 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.



          “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 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.



6









 





          “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.



          “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, 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 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 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, including, without limitation, any Contingent Obligations of the Borrower
and its Subsidiaries.



7









 





          “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
Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit Advance made
by the Issuing Bank, (b) 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
of such Lender Party, (c) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (d) 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).



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



          “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.



          “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



8









 







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.



          “Early Termination Date” has the meaning specified in the definition of “Termination Date”
herein.



          “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 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.



          “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; (v) any fund (other than a mutual
fund) which invests in bank loans and whose assets exceed $100,000,000; and (vi) with the prior
approval of the Administrative Agent and the Required Lenders, any other Person; and (b) with
respect to the Letter of Credit Facility, a Person that is an Eligible Assignee under
subclause (i), (ii) or (vi) 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 without
the approval of the Administrative Agent and the Required Lenders and (y) no Person shall be an
“Eligible Assignee” unless at the time of the proposed assignment to such Person (i) such Person is
able to make its portion of the Revolving Credit A Advances in U.S. dollars, and (ii) 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.



9









 





          “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 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



10









 







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 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 December 7, 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.



11









 





          “Facility” means the Revolving Credit 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 even date herewith 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.



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



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



          “GAAP” has the meaning specified in Section 1.03.



          “GERA 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 LLC.



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



12









 





          “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.



          “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 4.01(ee).



          “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 and the Initial Lenders.



          “Initial Lenders” means the financial institutions listed on the signature pages hereof as the
Initial Lenders.



          “Initial Pledged Debt” has the meaning specified in the Security 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 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 Subsidiaries for
such Measurement Period with respect to all outstanding Debt of the Borrower and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with respect to letters of
credit, bankers’ acceptance financing and other Debt).



          “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
numerically



13









 








corresponding day in the next succeeding calendar month and, thereafter, each
subsequent period commencing on the last day of the immediately preceding Interest Period and
ending on the numerically corresponding day in the next succeeding calendar month. The duration of
each such Interest Period shall be one month; provided, however, that:




       (a) no Interest Period shall extend beyond the Termination Date;




       (b) 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




       (c) 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.



          “Interim Mandatory Amortization Payments” has the meaning specified in Section 2.06(e)(iv)(B).



          “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. For avoidance of doubt, the term Investment shall
also include the acquisition of any real estate assets (a) other than the acquisition of real
estate assets in the ordinary course of business in connection with the operation of investment
programs by the Borrower or its Subsidiaries and consistent with the Approved Budget, provided that
(i) the cost of such real estate assets acquired shall not exceed $10,000,000 in the aggregate,
(ii) no individual real estate asset so acquired shall remain owned by the Borrower or any
Subsidiary of the Borrower for longer than 90 consecutive days, and (iii) no Debt shall be incurred
by the Borrower or any Subsidiary of the Borrower in connection with such real estate assets, and
(b) exclusive of the leasing of office space as a lessee in the ordinary course of business.



          “Issuing Bank” means the Initial Issuing Bank and any other Revolving Credit B 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 B 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 B Lender or Eligible Assignee, as
the case may be, shall have a Letter of Credit Commitment.



14









 





          “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 Related Documents” has the meaning specified in Section 2.04(d)(ii)(A).



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



          “Legacy TIC Syndication” means any tenant-in-common syndication effected prior to the
Effective Date by the Borrower or its Subsidiaries that complies with each of the following
requirements: (a) such syndication was entered into in the ordinary course of the Borrower’s
business, (b) such syndication is not inconsistent with the Approved Budget, and (c) no Default has
occurred and is continuing or could reasonably be expected to result from such syndication.



          “Lender Party” means any Lender or the Issuing Bank.



          “Lender Warrants” means warrants of the Borrower in substantially the form of Exhibit I
granted in accordance with the Warrant Agreement.



          “Lenders” means the Initial Lenders 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 B
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) $4,289,245,
as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Letter of
Credit Facility shall comprise a subfacility of the Revolving Credit B Facility, and, for avoidance
of doubt, the Available Amount of each Letter of Credit shall reduce the Unused Revolving Credit B
Commitments of the Lenders, as more particularly described in the definition of “Unused Revolving
Credit B Commitment”.



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



          “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.



15









 





          “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 (i) GERA Abrams Centre LLC, (ii) GERA 6400 Shafer LLC,
(iii) GERA Danbury LLC, (iv) NNN 200 Galleria, LLC and (v) NNN Avallon, LLC.



          “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.



          “Mandatory Amortization Date” has the meaning specified in Section 2.06(e)(iii).



          “Mandatory Amortization Payment” has the meaning specified in Section 2.06(e)(iii).



          “Mandatory Prepayment Event” has the meaning specified in Section 2.06(e).



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



          “Material Adverse Change” means any material adverse change in the business, assets,
properties, condition (financial or otherwise) or prospects of the Borrower or of the Borrower and
its Subsidiaries, taken as a whole, including, without limitation, any material adverse change in
the projected cash flow of the Borrower as compared to the Cash Flow Projections.



          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
properties, condition (financial or otherwise) or prospects of the Borrower or of the Borrower and
its Subsidiaries, taken as a whole, (b) the rights and remedies of the Administrative Agent or any
Lender Party under any Loan Document, (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, or (d) the projected cash flow of the
Borrower as compared to the Cash Flow Projections.



          “Material Contract” means, with respect to any Loan Party or any of their Subsidiaries, each
contract (other than a contract pursuant to which such Loan Party or Subsidiary is engaged to
provide brokerage services with regard to a single client under which a commission or other fee is
payable) to which such Loan Party or Subsidiary is a party involving aggregate consideration
(excluding (x) reimbursable expenses of such Loan Party or Subsidiary and (y) project management
fees payable to such Loan Party or Subsidiary the amount of which cannot yet be determined because
the amount of such fees are contingent) payable to or by such Loan Party or Subsidiary of $500,000
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.



          “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 Borrower Properties (other than office space leases for which Borrower is the lessee)
having a fair market value exceeding $500,000, duly executed by the appropriate Loan Party.



16









 





          “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 the Borrower or any of its Subsidiaries, 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 Borrower or relevant 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, (b) with respect to any conversion of any Investment into
cash or Cash Equivalents, the excess, if any, of (i) the sum of the cash or Cash Equivalents
received in connection with such conversion over (ii) the sum of (A) the out-of-pocket costs, fees,
commissions, premiums and expenses incurred by the applicable Borrower, Guarantor or Subsidiary in
connection with such conversion to the extent such amounts were not deducted in determining the
amount referred to in clause (i) and (B) 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, (c)
with respect to any refund for Taxes paid received by the Borrower or any of its Subsidiaries, the
excess, if any, of (i) the sum of the cash or Cash Equivalents received in connection with such
refund over (ii) the sum of (A) the out-of-pocket costs, fees, commissions, premiums and expenses
incurred by the applicable Borrower or Subsidiary in connection with such refund to the extent such
amounts were not deducted in determining the amount referred to in clause (i) and (B) 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, (d) with respect to any direct or indirect public offering of
or private placement of any Equity Interests (including Preferred Interests), the excess, if any,
of (i) the sum of the cash or Cash Equivalents received in connection with such offering or
placement over (ii) the sum of (A) the out-of-pocket costs, fees, commissions, premiums and
expenses incurred by the applicable Borrower, Guarantor or Subsidiary in connection with such
offering or placement to the extent such amounts were not deducted in determining the amount
referred to in clause (i) and (B) 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, (e) with respect to
the issuance of any Debt securities (including mortgages, mortgage bonds and any Debt expected to
be included in or contributed to a commercial mortgage-backed securities issuance, a collateralized
debt obligation or a collateralized loan obligation), whether placed publicly or privately, the
excess, if any, of (i) the sum of the cash or Cash Equivalents received in connection with such
issuance over (ii) the sum of
(A) the out-of-pocket costs, fees, commissions, premiums and expenses incurred by the
applicable Borrower, Guarantor or Subsidiary in connection with issuance to the extent such amounts
were not deducted in determining the amount referred to in clause (i) and (B) federal, state,
provincial, foreign and



17









 








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 (f) with respect to any other transaction or event
occurring outside of the ordinary course of business of the Borrower and its Subsidiaries, the
excess, if any, of (i) the sum of the cash or Cash Equivalents received in connection with such
transaction or event over (ii) the sum of (A) the out-of-pocket costs, fees, commissions, premiums
and expenses incurred by the applicable Borrower or Subsidiary in connection with the transaction
or event to the extent such amounts were not deducted in determining the amount referred to in
clause (i) and (B) 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.



          “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.



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



          “Note” means a Revolving Credit Note.



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



          “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.



18









 





          “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).



          “Permitted Cash Reserves” means cash or Cash Equivalents in an aggregate amount not to exceed
at any time the sum of (a) the minimum amount necessary to satisfy any cash on hand or liquidity
requirements imposed on the Borrower or its Subsidiaries under the rules or regulations of the
Financial Industry Regulatory Authority, Inc. plus (b)(i) during the period from the Effective Date
until the date of consummation of a recapitalization transaction in accordance with the
Recapitalization Plan, $6,000,000, and (ii) after the date on which a recapitalization transaction
is consummated in accordance with the Recapitalization Plan, $12,000,000.



          “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).



          “Permitted Variance” has the meaning specified in Section 5.03(e).



19









 





          “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 Equity” has the meaning specified in the Security Agreement.



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



          “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.



          “Pre-Negotiation Agreement” means that certain Pre-Negotiation Agreement dated as of February
27, 2009 by and among the Borrower, the Administrative Agent and the Guarantors (as defined in the
Existing Agreement).



          “Prepayment Failure Event” has the meaning specified in Section 2.06(e)(iii).



          “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 B Pro Rata Share” of any amount means, with respect to any
Revolving Credit B 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 B 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 B Commitment as in effect immediately prior to such termination) and the denominator of
which is the Revolving Credit B Facility at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, the Revolving Credit B Facility as in effect
immediately prior to such termination). The initial Revolver B Pro Rata Share of each Lender is
set forth opposite the name of that Lender in Schedule I annexed hereto under the heading “Revolver
B Pro Rata Share”; provided that Schedule I shall be amended and each Revolver B 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.



          “Real Property Assets” means all real property held for sale by any Limited Purpose Subsidiary
as permitted by Section 5.01(s), Section 5.01(t) and 5.02(e)(v). The Borrower acknowledges that as
of the Effective Date the Real Property Assets consist of those properties listed on Schedule IV.



          “Recapitalization Plan” means a recapitalization plan, specifying the specific steps to be
taken to implement a recapitalization of the Borrower and the specific dates by which such steps
must be completed, in the form of Schedule V.



          “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



20









 







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 B 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 B Commitment of such Lender at such time. For purposes of this definition, the
aggregate principal amount 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 B Lenders
ratably in accordance with their respective Revolving Credit B 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).



          “Revised Approved Budget” has the meaning specified in Section 2.06(e)(iv)(C).



          “Revolver A Pro Rata Share” of any amount means, with respect to any Revolving Credit A 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 A 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 A Commitment as in
effect immediately prior to such termination) and the denominator of which is the Revolving Credit
A Facility at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05
or 6.01, the Revolving Credit A Facility as in effect immediately prior to such termination). The
initial Revolver A Pro Rata Share of each Lender is set forth opposite the name of that Lender in
Schedule I annexed hereto under the heading “Revolver A Pro Rata Share”; provided that Schedule I
shall be amended and each Revolver A 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.



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



          “Revolving Credit Advance” means a Revolving Credit A Advance or a Revolving Credit B Advance.



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



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




21











 





          “Revolving Credit Borrowing” means a Revolving Credit A Borrowing or a Revolving Credit
B Borrowing.




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




          “Revolving Credit A 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 A 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 A Commitment”, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.




          “Revolving Credit B 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 B 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 B Commitment”, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.




          “Revolving Credit Commitment” means a Revolving Credit A Commitment or a Revolving Credit B
Commitment.




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




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




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




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




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




          “Revolving Credit Lender” means a Revolving Credit A Lender or a Revolving Credit B Lender.




          “Revolving Credit 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 and Letter
of Credit Advances made by such Lender, as amended.




          “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.




22









 





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




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




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




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




          “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.




          “Subsidiaries 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.




          “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 Bank” has the meaning specified in the Existing Agreement.




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




23









 





          “Termination Date” means the earliest of (a) if a Prepayment Failure Event has occurred,
January 15, 2010 (the “Early Termination Date”), (b) provided that no Prepayment Failure Event has
occurred, March 31, 2010, subject to the extension thereof pursuant to Section 2.17, and (c) the
date of termination in whole of the Revolving Credit Commitments and the Letter of Credit
Commitment pursuant to Section 2.05 or 6.01.




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




          “Unused Revolving Credit B Commitment” means, with respect to any Revolving Credit B Lender at
any time, without duplication, (a) such Lender’s Revolving Credit B Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all Revolving Credit B 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, and (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.




          “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.




          “Warrant Agreement” means that certain Warrant Agreement among the Borrower and the Warrant
Agent described therein dated as of even date herewith.




          “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.




          “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 any financial or accounting terms used
in this Agreement, 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 December 31, 2008 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



24









 







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 A Advances. The Revolving Credit A Facility results from the
bifurcation of the Revolving Credit Facility under the Existing Agreement and consists of a tranche
of the Advances outstanding thereunder in the aggregate principal amount of $38,000,000, the terms
of which have been modified by this Agreement to comprise the Revolving Credit A Facility. The
Revolving Credit A Commitments shall be deemed to have been fully funded as of the Effective Date
(the “Revolving Credit A Advance”). No additional Advances in respect of the Revolving Credit A
Facility shall be permitted hereunder. Amounts borrowed or deemed borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed.




          (b) The Revolving Credit B Advances. The Revolving Credit B Facility results from the
bifurcation of the Revolving Credit Facility under the Existing Agreement and consists of a tranche
of the Advances outstanding thereunder in the aggregate principal amount of $29,289,245, the terms
of which have been modified by this Agreement to comprise the Revolving Credit B Facility.
Specifically, the Revolving Credit B Facility consists of (i) Revolving Credit B Advances in the
aggregate principal amount of $25,000,000, and (ii) Letters of Credit in the aggregate Available
Amount of $4,289,245. The Revolving Credit B Commitments hereunder shall be deemed to have been
fully funded as of the Effective Date. Each Revolving Credit B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances (each a “Revolving Credit B 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 B Facility in an amount for each
such Advance not to exceed such Lender’s Unused Revolving Credit B Commitment at such time. Each
Revolving Credit B Borrowing shall be in an aggregate amount of not less than $500,000 or an
integral multiple of $100,000 in excess thereof (other than the initial Borrowing to fund the L/C
Collateral Account pursuant to Section 3.01(k), a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Letter of Credit Advances or a Borrowing comprised
solely of Base Rate Advances) and shall consist of Revolving Credit B Advances made simultaneously
by the Revolving Credit B Lenders ratably according to their Revolving Credit B Commitments.
Within the limits of each Revolving Credit B Lender’s Unused Revolving Credit B Commitment in
effect from time to time, and subject to the limitations set forth in Sections 2.14 and 3.02, the
Borrower may borrow under this Section 2.01(b), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(b). No more than one Revolving Credit B Advance shall be available per
week. On the Effective Date, the Lenders shall make Revolving Credit B Advances



25









 






in an aggregate amount sufficient to fund the L/C Collateral Account pursuant to Section
3.01(k), and such Revolving Credit B Advances shall be deposited directly into the L/C Collateral
Account.




          (c) [Intentionally Omitted].




          (d) The Letters of Credit. No additional letters of credit (the “Letters of Credit”)
shall be available under this Agreement from and after the Effective Date. All Existing Letters of
Credit, as listed on Schedule III attached hereto, shall be deemed to have been issued as Letters
of Credit hereunder, and from and after the Effective Date shall be subject to and governed by the
terms and conditions of this Agreement. No Existing Letter of Credit shall have an expiration date
later than the 30th day before the Termination Date (without reference to any extension options).
In the event that the expiration date of any Existing Letter of Credit may be automatically
extended beyond the 30th day before the Termination Date (without reference to any extension
options) pursuant to the terms of such Existing Letter of Credit, the Administrative Agent is
hereby permitted to send a notice to the Borrower and the beneficiary of the applicable Letter of
Credit notifying the Borrower and such beneficiary that the Administrative Agent has elected not to
extend the expiration date of such Existing Letter of Credit. On the Effective Date, the Lenders
shall make Revolving Credit B Advances in an amount approved by the Issuing Bank as sufficient to
cash collateralize 100% of the Available Amount of all Letters of Credit outstanding as of the
Effective Date, and such Revolving Credit B Advances shall be deposited into the L/C Collateral
Account in compliance with Section 3.01(k).




     SECTION 2.02 Making the Advances. (a) Except as otherwise provided in Section 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 Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advance comprising such Borrowing, and (iii) aggregate
amount of such Borrowing. 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 Revolving
Credit 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.



          (b) [Intentionally Omitted].




          (c) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less
than $500,000 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) no more than eight separate
Interest Periods shall be permitted at any one time.




          (d) Each Notice of 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




26









 







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.




          (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 Drawings and Reimbursement Under Letters of Credit. (a) [Intentionally
Omitted.]



          (b) Letter of Credit Reports. Promptly after amendment of any Letter of Credit the
Issuing Bank shall notify the Borrower and the Administrative Agent, in writing, of such amendment
and such notice shall be accompanied by a copy of such amendment. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender, in writing, of such amendment and if so
requested by a Lender, the Administrative Agent shall provide such Lender with copies of such
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) The Issuing Bank
is hereby deemed to have sold and transferred to each Revolving Credit B Lender, and each Revolving
Credit B Lender (in its capacity under this Section 2.03(c), a “Participant”) is hereby deemed
irrevocably and unconditionally to have purchased and received from the Issuing Bank, without
recourse or warranty, an undivided interest and participation in each 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 B Commitments or the Revolving Credit B 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



27









 






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 B 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 B 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 issued by it shall not create for the Issuing Bank any resulting liability to
the Borrower, any other Loan Party, any Revolving Credit B 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 shall make any payment under any Letter of Credit issued by it, all funds on deposit
in the L/C Collateral Account shall be exhausted or otherwise unavailable, and the Borrower shall
not have reimbursed any unpaid portion of such payment in full to the Issuing Bank pursuant to
Section 2.04(d), 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.




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          (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 A Advances. The
Borrower shall repay, on the Termination Date, to the Administrative Agent for the ratable account
of the Revolving Credit A Lenders the aggregate principal amount of the Revolving Credit A Advances
then outstanding.



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




          (c) [Intentionally Omitted].




          (d) 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 B Lender that has made a
Letter of Credit Advance on the earlier of demand and the Termination Date in respect of the
Revolving Credit B 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;



29









 






     (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;


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.




          (iii) To the extent of funds available in the L/C Collateral Account, the Administrative Agent
for the account of the Issuing Bank and each other Revolving Credit B Lender shall use such funds
to repay each Letter of Credit Advance promptly following the making of such Advance. If at any
time the funds remaining in the L/C Collateral Account exceed the sum of the aggregate amount of
all Letter of Credit Advances then outstanding and the aggregate Available Amount of all Letters of
Credit then outstanding, such excess shall be first applied to prepay outstanding Revolving Credit
A Advances until the aggregate amount of Revolving Credit A Advances then outstanding shall be
reduced to zero, second applied to prepay outstanding Revolving Credit B Advances until the
aggregate amount of Revolving Credit B Advances then outstanding shall be reduced to zero, and
third, at such time as no Advances remain outstanding, returned to the Borrower promptly following
demand.




     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 Revolving Credit A Commitments, the Letter of
Credit Facility and the Unused Revolving Credit B Commitments; provided, however, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $500,000 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) From time to time upon each repayment or prepayment of the
Revolving Credit A Advances, the aggregate Revolving Credit A Commitments of the Revolving Credit A
Lenders shall be automatically and permanently reduced, on a pro rata basis, by an amount equal to
the amount by which the aggregate Revolving Credit A Commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the Revolving Credit A Advances then
outstanding (after giving effect to any such repayment or prepayment thereof).




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



30









 







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
$500,000 or an integral multiple of $100,000 in excess thereof. Each such prepayment of Advances
shall be allocated among the Applicable Lenders on a pro rata basis.



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




          (ii) [Intentionally Omitted].




          (iii) Prepayments of the Revolving Credit B Facility made pursuant to clause (i) above shall
be applied to prepay Revolving Credit B Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full. Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Collateral Account, such funds shall be promptly applied to
pay the corresponding Letter of Credit Advance made by the Issuing Bank or Revolving Credit B
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 then outstanding.




          (d) Payments with Interest. All prepayments under subsections (b), (c) and (e) 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) The Borrower shall on or before the
30th day following the end of each calendar month, prepay an aggregate principal amount
of the Revolving Credit B Advances (and, to the extent the Revolving Credit B Advances shall be
reduced to zero, prepay outstanding Revolving Credit A Advances) comprising part of the same
Borrowings in an amount equal to all Adjusted Excess Cash Flow for such calendar month; provided,
however, that from and after a Prepayment Failure Event, the Borrower shall be entitled to utilize
Adjusted Excess Cash Flow to make Interim Mandatory Amortization Prepayments, as and to the extent
necessary to make such prepayments when due, and such utilization shall not be deemed a breach of
this Section 2.06(e).




          (ii) The Borrower shall be required to prepay outstanding Revolving Credit A Advances (and, to
the extent the Revolving Credit A Facility shall be reduced to zero, prepay outstanding Revolving
Credit B Advances) by the Applicable Paydown Percentage of Net Cash Proceeds resulting from any of
the following (each, a “Mandatory Prepayment Event”):





     (A) the sale, lease, transfer or other disposition of any assets owned by the
Borrower or its Subsidiaries;




     (B) the conversion of Investments held by the Borrower or any of its
Subsidiaries into cash or Cash Equivalents;




     (C) any refund for Taxes paid received by the Borrower or any of its
Subsidiaries;



31









 






     (D) any direct or indirect public offering of or private placement of any
Equity Interests (including Preferred Interests) by or in the Borrower or any of its
Subsidiaries;




     (E) the issuance by the Borrower or any of its Subsidiaries of any Debt
securities (including mortgages, mortgage bonds and any Debt expected to be included
in or contributed to a commercial mortgage-backed securities issuance, a
collateralized debt obligation or a collateralized loan obligation), whether placed
publicly or privately; and




     (F) any other transaction or event occurring outside of the ordinary course of
business of the Borrower and its Subsidiaries;


provided, however, that notwithstanding the foregoing, (x) with respect to any Net Cash Proceeds
received by the Borrower or any of its Subsidiaries in connection with (i) the consummation of the
sale or other disposition (whether direct or indirect) of any of the Real Property Assets or (ii)
the Borrower’s United States federal tax refund for 2008 of $10,205,424, such Net Cash proceeds
shall be applied first to prepay outstanding Revolving Credit B Advances until the aggregate
principal amount of all outstanding Revolving Credit B Advances has been reduced to zero, and
second to prepay outstanding Revolving Credit A Advances; and (y) the Borrower shall prepay
outstanding Revolving Credit B Advances in a principal amount equal to 100% of the Net Cash
Proceeds received from the sale or other disposition by GERA Danbury LLC of all real property owned
or held by it by June 1, 2009, unless such date is extended with the approval of the Administrative
Agent and the Required Lenders; provided further that in the event the Borrower is not in
compliance with the Recapitalization Plan at the time of the sale or other disposition of real
property by GERA Danbury LLC, then 100% of the Net Cash Proceeds of such sale shall be applied
first to prepay outstanding Revolving Credit A Advances until the aggregate principal of all
outstanding Revolving Credit A Advances has been reduced to zero, and second to prepay outstanding
Revolving Credit B Advances.




          (iii) The Borrower shall be required to prepay (the “Mandatory Amortization Payment”) a
portion of the Revolving Credit A Facility in an amount and by the date specified in Schedule
2.06(e)(iii) (the “Mandatory Amortization Date”); provided, however, that if the Borrower shall
fail to make such Mandatory Amortization Payment in the amount and by the date specified in
Schedule 2.06(e)(iii) by reason of not having sufficient cash or Cash Equivalents on hand (a
"Prepayment Failure Event”), provided, however, notwithstanding any provision herein to the
contrary, such Prepayment Failure Event shall not constitute an Event of Default hereunder.




          (iv) In the event there occurs a Prepayment Failure Event, the following shall apply:





     (A) the Termination Date shall not extend beyond January 15, 2010 (as provided
in the definition thereof in Section 1.01) and the Termination Date extension option
provided pursuant to Section 2.17 shall be of no further force and effect;




     (B) on the first Business Day of each of the calendar months October 2009,
November 2009 and December 2009, the Borrower shall be required to prepay a portion
of the Revolving Credit A Facility in the amount of $3,333,333.33 on each such date
(the “Interim Mandatory Amortization Payments”), and the failure to make any such
prepayment on the applicable due date therefor shall comprise an immediate Event of
Default;




     (C) not later than the date of a Prepayment Failure Event, the Borrower shall
furnish to the Administrative Agent and the Lender Parties a revised consolidated,



32









 







detailed monthly budget prepared on a line-item basis for the calendar months
October 2009 through January 2010, together with a cash balance report (showing
day-end balances) showing the net cash flow projected for the period covered thereby
(the “Revised Approved Budget”), in detail, form and substance satisfactory to the
Administrative Agent and the Required Lenders, which Revised Approved Budget shall
(i) provide for the making of Interim Mandatory Amortization Payments out of
Adjusted Excess Cash Flow, and (ii) show operating cash flow from the business
operations of the Borrower and its Subsidiaries for each of the periods covered
thereby in amounts not less than the respective amounts of operating cash flow shown
for such periods in the Approved Budget in effect on the Effective Date. The
Administrative Agent and the Required Lenders shall review the Revised Approved
Budget after receipt thereof and Borrower shall promptly make any and all changes as
Administrative Agent or the Required Lenders may request. As soon as available,
Borrower shall provide to the Lenders significant revisions, if any, to the Revised
Approved Budget. Any amendments to or replacements of the Revised Approved Budget
shall be required to be approved by the Administrative Agent and the Required
Lenders; and




     (D) no additional Advances shall be permitted to be drawn by the Borrower under
the Facility from and after the occurrence of a Prepayment Failure Event.



     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
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 5%
per annum above the rate per 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
5% 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.




33









 








          (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 monthly on the last day of each calendar
month, commencing May 31, 2009, and on the Termination Date in respect of the applicable Facility
an unused revolving commitment fee at the rate of 0.75% per annum of the average daily Unused
Revolving Credit B Commitment of each Appropriate Lender during such month; 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) [Intentionally Omitted].




          (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.




          (d) Restatement Fee. The Borrower shall pay to the Administrative Agent, for the
account and ratable benefit of the Lenders, an amendment fee equal to 1% of the sum of the
Revolving Credit Commitments on the Effective Date.




     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.




34









 








          (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 maintaining or participating in
Letters of Credit or of agreeing to make or of making or maintaining Letter of Credit Advances
(excluding, for 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
participate in Letters of Credit hereunder and other commitments of such type or the 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 participate in Letters of Credit hereunder or to the 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



35









 






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 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



36









 






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.




          (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.



37









 





          (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 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



38









 






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 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. (a) The Revolving Credit A Facility results from the
bifurcation of the Revolving Credit Facility under the Existing Agreement and consists of a tranche
of the Advances outstanding thereunder in the aggregate principal amount of $38,000,000, the terms
of which



39









 







have been modified by this Agreement to comprise the Revolving Credit A Facility. No proceeds of
the Revolving Credit A Facility shall be available for any other purpose.



          (b) The proceeds of the Revolving Credit B Advances shall be available (and the Borrower
agrees that it shall use such proceeds) solely to pay (i) the costs and expenses of the transaction
contemplated under this Agreement, (ii) costs and expenses incurred by the Borrower and its
Subsidiaries in accordance with the Approved Budget, and (iii) to fund Permitted Cash Reserves.




          (c) For the avoidance of doubt, in no event shall the proceeds from any Facility be used (i)
to make Restricted Payments, (ii) to pay management or employee bonuses other than in accordance
with the Approved Budget, (iii) to pay Capital Expenditures other than in accordance with the
Approved Budget, (iv) to purchase or redeem any Equity Interests of the Borrower, (v) to make any
payments on guarantees or Contingent Obligations related to any Legacy TIC Syndication other than
in accordance with the Approved Budget, or (vi) to make payments to any creditors or holders of any
Liens in connection with Debt subordinated (or required hereunder to be subordinated) to the
Obligations under the Loan Documents.




     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 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



40









 







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 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




     (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 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;



41









 






     (ii)      second, to the Issuing 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 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 Obligations. (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 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 Revolving Credit Note, in substantially the form of Exhibit A, 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



42









 






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 extension of the
Termination Date until January 5, 2011. 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 such additional period, provided that such extension shall be
available if and only if: (i) no Prepayment Failure Event shall
have occurred prior to the Extension Date and the aggregate principal amount of Revolving Credit A
Advances outstanding on the Extension Date does not exceed the amount set forth on Schedule
2.06(e)(iii), (ii) the Administrative Agent and the Required Lenders have agreed, in their sole
discretion, upon financial covenants with which the Loan Parties shall comply during the extension
term and the Loan Parties shall have executed and delivered an amendment to this Agreement on or
prior to the Extension Date confirming the effectiveness of such financial covenants during the
extension term, and (iii) 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 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 Lender Pro Rata Shares. The Revolving Credit Advances outstanding under
the Existing Agreement on the Effective Date shall be deemed to have been made under, and amended
and restated by, this Agreement on the date hereof without executing any further documentation. As
of the Effective Date, each Facility is fully funded and each Lender holds the respective Revolver
B Pro Rata Share and Revolver A Pro Rata Share of the Facility set forth in Schedule I.



ARTICLE III




CONDITIONS OF LENDING




     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 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:



43









 






     (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 third 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 Equity referred to therein
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,




     (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 covering, among others,
those UCC-1 financing statements listed on Schedule 3.01(a)(ii)(F) hereto).




     (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 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



44









 







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 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 December 31, 2008, 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).




     (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 and a Breakage Indemnity Letter.




     (xi) A favorable opinion of Zukerman Gore Brandeis & Crossman, 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) The Lender Warrants pursuant to the Warrant Agreement and such other
documentation as may be required by the Lender Parties in connection therewith.




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



45









 






     (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 Omitted].




     (d) [Intentionally Omitted].




     (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 Administrative Agent and the Required Lenders shall have received and
approved the Approved Budget pursuant to the terms of Section 5.03(f).




     (j) The Administrative Agent and the Required Lenders shall have received, reasonably
in advance of the Effective Date to allow the Administrative Agent and the Required
Lenders sufficient time to review and approve, the Recapitalization Plan.




     (k) The Borrower shall have deposited funds into the L/C Collateral Account in an
amount approved by the Issuing Bank as sufficient to cash collateralize 100% of the
Available Amount of all Letters of Credit outstanding as of the Effective Date. The
Borrower and the Lender Parties acknowledge that this Section 3.01(k) shall be satisfied
on the Effective Date by



46









 







   the deposit of a Revolving Credit B Borrowing in the proper amount directly into the
L/C Collateral Account.



     SECTION 3.02 Conditions Precedent to Each Borrowing and any Extension. The obligation
of each Appropriate Lender to make an Advance on the occasion of each 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 extension (a) the
Borrower shall have delivered to the Administrative Agent a Notice of Borrowing together with (i) a
statement of cash flows of the Borrower and its Subsidiaries in detail satisfactory to the
Administrative Agent and the Required Lenders, and (ii) the then current Budget Reconciliation and
Cash Flow Variance Report in compliance with Section 5.03(e), (b) 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:




     (i) that 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;




     (ii) that 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;




     (iii) that no Material Adverse Change has occurred since December 31, 2008;




     (iv) that attached to such certificate is a detailed break-down showing the manner in
which such funds will be held as Permitted Cash Reserves or expended in accordance with the
Approved Budget, in detail satisfactory to the Administrative Agent and the Required
Lenders;




     (v) that all prior Advances drawn under this Agreement have been held or expended by
the Borrower in accordance with the Approved Budget (subject to the Permitted Variance
provided for in Section 5.03(e));




     (vi) that the then current Budget Reconciliation and Cash Flow Variance Report attached
to the Notice of Borrowing is true and correct and complies with the requirements of Section
5.03(e); provided, however, that this clause (vi) shall apply only to Advances made from and
after May 15, 2009;




     (vii) that such funds will be applied to fund Permitted Cash Reserves or disbursed to
pay items due and payable in the then current week in accordance with the Approved Budget;




     (viii) that no Budget Non-Compliance Event has occurred and is continuing; and




     (ix) that no Prepayment Failure Event has occurred.


and (c) the Administrative Agent shall have received such other approvals, opinions or documents as
the Administrative Agent or the Required Lenders may 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



47









 







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 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 or Foreign 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.




     (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 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 Subsidiaries. No Loan Party or any of its 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.



48









 






     (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) After giving effect to the restatement of the Borrower’s financial statements as
described in the Borrower’s Form NT 10-K filed with the Securities and Exchange Commission
on March 17, 2009, the Consolidated balance sheet of the Borrower and its Subsidiaries as
at December 31, 2008, 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, duly certified by the Chief Financial Officer of the Borrower, copies of
which have been furnished to each Lender Party, 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 December 31, 2008, there has been no Material Adverse Change.




     (h) [Intentionally Omitted].




     (i) The Consolidated forecasted 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



49









 







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 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 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 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 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 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.



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     (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 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 any Loan Party or any of its 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 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 Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its 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 Subsidiaries. This representation does not include properties that
are or were managed by any Loan Party or any of its Subsidiaries in its capacity as property
manager for a third party client so long as the agreement pursuant to which such Loan Party
or Subsidiary acts as property manager for such properties provides for the indemnification
of such Loan Party or Subsidiary, or does not subject such Loan Party or Subsidiary to
liability, for the matters described in clause (ii), and so long as the Loan Party or its
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 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 Subsidiaries in its capacity as property manager for a
third party client so long as the agreement pursuant to which such Loan Party or Subsidiary
acts as property manager for such property provides for the indemnification of such Loan
Party or Subsidiary, or does not subject such Loan Party or Subsidiary to liability, for
such release, and so long as the Loan Party or its Subsidiary has not violated any provision
of such agreement where such violation would to any



51









 







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 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 Subsidiaries have been disposed of in a manner not reasonably expected to result in
material liability to any Loan Party or any of its Subsidiaries.




     (r) (i) Neither any Loan Party nor any of its 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 Subsidiaries and Affiliates has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local and foreign)
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
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 Omitted].




     (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 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 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 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 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.



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     (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 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 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 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.




     (bb) Set forth on Schedule 4.01(bb) hereto is a complete and accurate list of all
Subsidiaries of the Borrower which are not Guarantors. Each of the Subsidiaries listed on
Schedule 4.01(bb) is (i) prohibited by applicable law or regulation from acting as a
Guarantor, (ii) bound by contractual restrictions prohibiting such Subsidiary from acting
as a Guarantor which restrictions were not entered into for the purpose of avoiding acting
as a Guarantor hereunder, or (iii) an Inactive Subsidiary that the Borrower shall cause to
be dissolved within ninety (90) days after the Effective Date. All other Subsidiaries of
the Borrower are Guarantors hereunder.




     (cc) Set forth on Schedule 4.01(cc) hereto is a complete and accurate list of all
Contingent Obligations (including all such obligations in respect of Legacy TIC
Syndications) of any Loan Party or any of their Subsidiaries on the date hereof, showing
as of the date hereof the obligor and the principal amount outstanding thereunder.




     (dd) Set forth on Schedule 4.01(dd) hereto is a complete and accurate list of all
existing Investments of any Loan Party or any of their Subsidiaries in connection with any
Legacy TIC Syndications on the date hereof. The Borrower has previously disclosed in
writing to the Administrative Agent all guarantees and Contingent Obligations in
connection therewith and such disclosure was accurate and complete.




     (ee) Set forth on Schedule 4.01(ee) hereto is a complete and accurate list of all
direct and indirect Subsidiaries (the “Inactive Subsidiaries”) of each Loan Party which
(i) are inactive and hold either no assets or a nominal amount of assets, and (ii) the
Borrower is planning to dissolve on or prior to the correlative date listed for such
Inactive Subsidiary on Schedule 4.01(ee), showing as of the date hereof (as to each such
Subsidiary) the full legal name of such Inactive Subsidiary, the applicable parent Loan
Party, the jurisdiction of its incorporation and the date on which such Inactive
Subsidiary is expected to dissolve. The Borrower has delivered to the Administrative
Agent all of the stock certificates or membership certificates, as applicable, for each
Inactive Subsidiary.




     (ff) Neither (i) Grubb & Ellis Asset Services Company nor (ii) Grubb & Ellis
Southeast Partners, Inc. were released by any Lender Party or Loan Party as a Guarantor
under Section 8.01. Both entities have been duly dissolved pursuant to applicable law.




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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 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
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 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 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
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 Subsidiaries to obtain and renew, all
Environmental Permits necessary for its operations and properties; and conduct, and cause
each of its 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
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 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 Subsidiary operates, and, simultaneously with the delivery of the
Compliance Certificate for the 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 Subsidiaries.



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     (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its 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 Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(d) and provided further that neither
the Borrower nor any of its Subsidiaries shall be required to preserve any right, permit,
license, approval, privilege or franchise if the Board of Directors of the Borrower or
such Subsidiary shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to the Borrower, such
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
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of
its 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 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
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 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
Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents
with any of their Affiliates on terms that are not less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arms’-length transaction with a Person not
an Affiliate, provided that any such transaction must be in the ordinary course of
business of the Borrower or such Subsidiary or permitted under Section 5.02(e)(v).




     (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, or (z) the acquisition of any property for a purchase price in excess of
$500,000 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,



55









 






     (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,




     (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,



56









 






     (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, and




     (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.




     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 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 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 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 Subsidiaries is or is to be a party,
and cause each of its Subsidiaries to do so.



57









 






     (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 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 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.




     (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 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 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
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. Maintain at all times all interest rate Hedge
Agreements existing on the date hereof or replacements thereof (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, and (iii) otherwise on terms and conditions
acceptable to the Administrative Agent and for an expense consistent with the Approved
Budget.




     (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 Subsidiaries is
entitled to make under such Material Contract, and cause each of its 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. Dissolve each Inactive Subsidiary on or prior to
the correlative date listed for such Inactive Subsidiary on Schedule 4.01(ee), and upon
the



58









 







Administrative Agent’s surrender to the Borrower of the stock certificates or
membership certificates, as applicable, for any Inactive Subsidiary that is dissolved,
mark such stock certificates or membership certificates, as applicable, cancelled and
place them into the minute book for such dissolved Inactive Subsidiary, provided, however,
that if such Inactive Subsidiary is not dissolved within ninety (90) days after the
Effective Date, such Inactive Subsidiary shall become and be a Guarantor hereunder not
later than such 90th day after the Effective Date.




     (r) Post Closing Matters. (i) Within twenty (20) days subsequent to the
Effective Date, 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 Securities Accounts or Deposit Accounts, as applicable, listed on Schedule
5.01(r)(i) hereto, each of which shall be duly executed by all of the parties thereto
other than the Administrative Agent.




     (ii) Simultaneously with the delivery of the Account Control Agreements and
Securities Account Control Agreements pursuant to clause (i) above, the Borrower
shall deliver to the Administrative Agent a favorable opinion of Zukerman Gore
Brandeis & Crossman, LLP, special counsel for the Loan Parties, in substantially the
form of Exhibit K hereto, and as to such other matters as any Lender Party through
the Administrative Agent may reasonably request.




     (iii) Within twenty (20) days subsequent to the Effective Date, the Borrower
shall comply with Section 4(b) of the Security Agreement with respect to the Pledged
Equity in respect of Grubb & Ellis Aga Realty Income Fund.




     (iv) Within ten (10) Business Days subsequent to the Effective Date, the
Borrower will deliver to the Administrative Agent the Initial Pledged Debt
identified as “Promissory notes issued from time to time by various TIC and Master
Lease Programs” on Schedule II to the Security Agreement.




     (v) Within five (5) Business Days subsequent to the Effective Date, the
Borrower will deliver to the Administrative Agent the Initial Pledged Debt issued by
Grubb & Ellis Apartment REIT Holdings, L.P.




     (vi) Within ten (10) Business Days subsequent to the Effective Date, the
Borrower will deliver to the Administrative Agent (a) a certificate of the Chief
Financial Officer or Chief Executive Officer of Grubb & Ellis Healthcare REIT II
Advisor, LLC that complies with the requirements set forth in Section 3.01(a)(v) and
(b) an original certificate evidencing the Pledged Equity in respect of Grubb &
Ellis Healthcare REIT II Advisor, LLC.




     (s) Sale of Danbury Real Property. Cause GERA Danbury LLC to complete the
sale of all real property owned or held by it and apply the Net Cash Proceeds of such sale
in accordance with Section 2.06(e) by June 1, 2009, unless such date is extended with the
approval of the Administrative Agent and the Required Lenders.




     (t) Sale of Real Property. Cause each Limited Purpose Subsidiary other than
GERA Danbury LLC to use commercially reasonable best efforts to complete the sale,
transfer or other disposition of all real property owned or held by such Limited Purpose
Subsidiary and apply the Net Cash Proceeds of such sale in accordance with Section 2.06(e)
such that by September 30, 2009 (i) no real property owned or held by any such Limited
Purpose Subsidiary appears on



59









 







the balance sheet of the Borrower or any of its
Subsidiaries, and (ii) there is no continuing recourse for the Debt secured by such real
property or any other Obligations pertaining thereto to the Borrower or any of its
Subsidiaries except for (x) the applicable Limited Purpose Subsidiary and (y) the existing
recourse to NNN Realty Advisors, Inc. related to the Debt secured by the real property
located at 200 Galleria Parkway, Atlanta, Georgia, provided that any settlement or payment
in connection with such recourse obligations shall be subject to the prior approval of the
Administrative Agent and the Required Lenders.




     (u) 2008 Form 10-K. File the Borrower’s Annual Report on Form 10-K with the
Securities and Exchange Commission within ten (10) Business Days after the Effective Date.




     (v) [Intentionally Omitted].




     (w) Approved Budget. At all times conduct its business in accordance with
the Approved Budget and make all payments and expenditures in accordance with the Approved
Budget, to the satisfaction of the Administrative Agent.




     (x) Recapitalization Plan. Diligently implement the Recapitalization Plan
and complete each step provided by the Recapitalization Plan by the date specified for
such completion in the Recapitalization Plan; provided, however, that if the Borrower
shall fail to consummate the recapitalization transaction contemplated by such
Recapitalization Plan by the date specified in such Recapitalization Plan, then,
notwithstanding any provision herein to the contrary, such failure shall not consititute
an Event of Default hereunder so long as the Borrower shall comply with Section
2.06(e)(iv).




     (y) Permitted Cash Reserves. At all times maintain all Permitted Cash
Reserves in a deposit account or securities account in which the Administrative Agent
holds a first priority perfected security interest and with respect to which the
depository institution or securities intermediary with which such account has been
established has entered into an Account Control Agreement under and as defined in the
Security Agreement.




     (z) Net Proceeds of Mandatory Prepayment Events. Cause the portion of any
Net Proceeds of Mandatory Prepayment Events that is not required to be applied to prepay
Advances pursuant to Section 2.06 to be held in a deposit account (i) established by and
maintained with the Administrative Agent in the name of the Administrative Agent, and (ii)
with respect to which the Borrower or applicable Subsidiary has delivered a supplement to
the Security Agreement pursuant to which the Administrative Agent has been granted a first
priority security interest in such account.



   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 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 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
Subsidiaries as debtor, or sign or suffer to exist, or permit any of its Subsidiaries to
sign or suffer to exist, any security agreement authorizing



60









 







any secured party thereunder
to file such financing statement, or assign, or permit any of its Subsidiaries to assign,
any accounts or other right to receive income, except:




     (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 equipment acquired or held by the Borrower
or any of its Subsidiaries in the ordinary course of business to secure the purchase
price of such equipment or to secure Debt incurred solely for the purpose of
financing the acquisition of any such equipment to be subject to such Liens, or
Liens existing on any such 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 equipment other than the equipment being acquired, and no such extension,
renewal or replacement shall extend to or cover any equipment 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 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) [Intentionally Omitted];




     (vii) Liens in respect of goods consigned to the Borrower or any of its
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; and




     (ix) Liens permitted under Section 5.02(l).




     (b) Debt and Preferred Interests. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
or create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create,
incur, assume or suffer to exist any
Preferred Interests, in each case except (so long as such exceptions are consistent
with the Approved Budget):




     (i) in the case of the Borrower,




     (A) Debt in respect of Hedge Agreements entered into in accordance with
Section 5.01(o) designed to hedge against fluctuations in interest rates



61









 







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 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 Subsidiary of the Borrower, Debt owed to the Borrower
or to a 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 Subsidiaries,




     (A) Debt under the Loan Documents,




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




     (C) Capitalized Leases permitted under Section 5.02(h) and entered into
in the ordinary course of business,




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



62









 






     (E) [Intentionally Omitted],




     (F) Contingent Obligations (1) [intentionally omitted], (2) described
on Schedule 4.01(cc), (3) arising in connection with indemnity programs for
employees and or agents, (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, and (5) in
respect of any guarantee of primary obligations of a Legacy TIC Syndication
existing on the date hereof, provided that such Contingent Obligations
described in this clause (5) shall not exceed, in respect of any Legacy TIC
Syndication, the amount set forth on Schedule 4.01(cc) with respect to such
Legacy TIC Syndication,




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




     (H) Debt for Borrowed Money which is (i) not secured by any Lien, (ii)
on economic and any other terms satisfactory in all respects to the
Administrative Agent in its sole discretion, and (iii) subordinated in all
respects to the Obligations of the Loan Parties hereunder pursuant to a
subordination agreement in form and substance satisfactory in all respects
to the Administrative Agent in its sole discretion, provided, however, that
the terms of such subordination agreement shall permit the obligor of such
subordinated Debt to make payments in respect of such Debt if (x) no Default
or Event of Default shall have occurred and be continuing at the time of
such payment or would result therefrom, (y) prior to the date on which such
payment is made the Borrower shall have satisfied the prepayment obligation
set forth in Section 2.06(e)(iii) hereof, and (z) the funds used for such
payment have been received by the Borrower as a result of the consummation
of a recapitalization transaction in accordance with the Recapitalization
Plan and are not funds generated by the business operations of the Borrower
and its Subsidiaries.




     (I) other Debt subordinated to Debt incurred hereunder and/or Preferred
Interests, in each case in amounts and on terms and conditions satisfactory
to the Administrative Agent and Required Lenders;




provided, however, that notwithstanding the provisions of subsections (iii)(A) through
(iii)(I) above, the aggregate amount of all Debt described in subsections (iii)(B), (iii)(C)
and (iii)(D)(y) 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 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 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 Subsidiaries to do so, except that:



63









 






     (i) any Subsidiary of the Borrower may merge into or consolidate with any other
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
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) [Intentionally Omitted];




     (iii) in connection with any sale or other disposition permitted under Section
5.02(e) (other than clause (ii) thereof), any 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) [Intentionally Omitted]; and




     (v) any of the Borrower’s 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 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);




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




     (iv) the Disposition of other assets by the Borrower or any Subsidiary so long
as (A) the purchase price paid to the Borrower or such 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 95% of the purchase price for such asset shall be paid to the Borrower
or such Subsidiary in cash or Cash Equivalents, (C) the aggregate purchase price
paid to the Borrower and all of its Subsidiaries for such asset and all other assets
sold by the Borrower and its Subsidiaries during the same Fiscal Year pursuant to
this clause (iv) shall not exceed $1,000,000 and (D) the Net Cash Proceeds of such
sale are applied to prepay Advances pursuant to Section 2.06(e); and




     (v) the (direct or indirect) sale of any Real Property Assets to an
unaffiliated third party in accordance with Section 5.01(s) and Section 5.01(t) for
fair market value and consideration consisting of at least 95% cash.



64









 






     (f) Investments. Make or hold, or permit any of its Subsidiaries to make or
hold, any Investment in any Person or assets, except (so long as such exceptions are
consistent with the Approved Budget):




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




     (ii) Investments by the Borrower and its 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
5.01(o);




     (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) [Intentionally Omitted]; and




        (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 and in accordance with the Approved Budget.




     (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 Subsidiaries to do any of the foregoing, or
permit any of its 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, any Loan Party may make Restricted
Payments to another Loan Party.




     (h) Lease Obligations. Create, incur, assume or suffer to exist, or permit
any of its 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 Subsidiaries
and leases entered into in the ordinary course of business for the benefit of tenants or
owners of real property managed by the



65









 







Borrower or its Subsidiaries to the extent any
payments required to be made thereunder by the Borrower or its 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
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
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
Subsidiary as of the Effective Date.




     (j) Accounting Changes. Make or permit, or permit any of its 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. (i) 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 (w) the prepayment of
the Advances in accordance with the terms of this Agreement, (x) regularly scheduled or
required repayments or redemptions of Existing Debt, (y) 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 (z) 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), Section 5.01(t) or Section 5.02(e)(v), or (ii) amend, modify or change
in any manner any term or condition of any Existing Debt, or permit any of its
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
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), in each case solely to the
extent that the agreement or instrument governing such 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. Except as provided for in the Approved Budget, become
a general partner in any general or limited partnership or joint venture, or permit any of
its Subsidiaries to do so; provided, however, that notwithstanding the foregoing, but
subject to the limitations on Investments set forth in Section 5.02(f), 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)
maintain existing 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:



66









 






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




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




        (iv) under no circumstances shall the aggregate amount of such Restricted
Investments made after the Effective Date exceed $3,000,000.




     (n) Speculative Transactions. Engage, or permit any of its 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
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
Subsidiaries, which may be capitalized, only to the extent contemplated (if at all) in the
Approved Budget, 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), or (vii).




     (p) Payment Restrictions Affecting Subsidiaries. Directly or indirectly,
enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer
to exist, any agreement or arrangement limiting the ability of any of its 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 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, and (iii) any agreement in effect at the time such 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
Subsidiaries to do any of the foregoing.



67









 






     (r) Bonuses. Except in each case to the extent provided (if at all) in the
Approved Budget, make cash payments or make commitments to make cash payments in
connection with the hiring or engagement of officers, employees or representatives of the
Borrower or any of its Subsidiaries or make cash payments or make commitments to make cash
payments of bonuses or similar cash payments to any employee, executive or consultant of
the Borrower or any of its Subsidiaries.




     (s) Subsidiary Debt. Cause or permit any Subsidiaries of the Borrower which
are neither Guarantors nor Limited Purpose Subsidiaries to create, assume, incur or suffer
to exist any Debt.




     (t) Capital Expenditures. Other than in accordance with the Approved Budget,
make any Capital Expenditure or create, incur, assume or suffer to exist any obligation to
make any Capital Expenditure, or permit any of its Subsidiaries to do any of the
foregoing.




     (u) Legacy TIC Syndication. Make any guarantees or special payments related
to any Legacy TIC Syndication other than in accordance with the Approved Budget.




     (v) ACH Payments. Make any payment, deposit, transfer or other disbursement
to, or through, any ACH Deposit Account (as such term is defined in the Security
Agreement), other than in accordance with the Approved Budget.




     (w) Approved Budget. Amend or otherwise modify, or permit any of its
Subsidiaries to amend or otherwise modify, the Approved Budget without the prior written
consent of the Administrative Agent and the Required Lenders.




     (x) Recapitalization Plan. Amend or otherwise modify, or permit any of its
Subsidiaries to amend or otherwise modify, the Recapitalization Plan without the prior
written consent of the Administrative Agent and the Required Lenders.




     (y) Fixed Charges. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Fixed Charges other
than in accordance with the Approved Budget.




     (z) Inactive Subsidiaries. Conduct, or permit its Subsidiaries to conduct,
any new business in the Inactive Subsidiaries, or transfer, or permit its Subsidiaries to
transfer, any Collateral or any other assets into the Inactive Subsidiaries without the
prior written consent of the Administrative Agent and the Required Lenders.



   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.



68









 






     (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 (provided, however, the Borrower shall provide the items
required to be delivered under this Section 5.03(b) solely with respect to the year 2008
by May 22, 2009), 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 unqualified opinion 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, 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 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 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, 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 a statement of reconciliation conforming such financial statements to
GAAP.




     (d) Monthly Financials. As soon as possible and in any event within thirty
(30) days after the end of each calendar month, 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



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Year and ending with the end of such month, and unaudited statements
of gross revenues and operating and other expenses with respect to each parcel of real
property owned or held by any Limited Purpose Subsidiary, in each case in form and detail
satisfactory to the Administrative Agent, 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) Budget Reconciliation and Cash Flow Variance. Commencing with the
calendar week ending May 22, 2009, as soon as available and in any event not later than
the second Business Day of each calendar week, a budget reconciliation and cash flow
variance report covering the period commencing with the week in which the Effective Date
occurs and ending on the last day of the calendar week immediately preceding delivery of
the report, in substantially the form of Exhibit H hereto and otherwise in detail, form
and substance satisfactory in all respects to the Administrative Agent and the Required
Lenders (the “Budget Reconciliation and Cash Flow Variance Report”), reconciling all
revenues as well as all payments and expenditures made by the Borrower and its
Subsidiaries with the Approved Budget together with (i) a cash balance report (showing
day-end balances) and (ii) a weekly cumulative cash flow variance report showing not more
than the greater of (x) a 15% cumulative negative variance between actual cumulative net
cash flow (consisting of total cash revenues less total cash expenditures) and the
cumulative net cash flow projected in the Approved Budget for the period covered thereby,
or (y) a $1,500,000 cumulative negative variance between actual cumulative net cash flow
and the cumulative net cash flow projected in the Approved Budget for the period covered
thereby (the greater of (x) or (y), the “Permitted Variance”); provided, however, that the
Borrower’s failure to comply with the Permitted Variance in any week (each, a “Budget
Non-Compliance Event”) shall not constitute an Event of Default hereunder unless and until
Budget Non-Compliance Events shall have occurred for three (3) consecutive calendar weeks.
For avoidance of doubt and for illustrative purposes only, the Borrower shall be in
compliance with clause (x) above for a subject calendar week if the Approved Budget
through the end of the subject calendar week shall project cumulative net cash flow of
$10,000,000, and the actual cumulative net cash flow of the Borrower and its Subsidiaries
for the period from the Effective Date through the end of the subject calendar week shall
not be less than $8,500,000.




     (f) Approved Budget and Cash Flow Projection. (i) As soon as available and
in any event not later than 10 days prior to the Effective Date, a consolidated, detailed
monthly budget prepared on a line-item basis for calendar months April 2009 through
December 2009, in detail, form and substance satisfactory to the Administrative Agent and
the Required Lenders showing all revenues projected to be received and all expenditures
projected to be made by the Borrower and its Subsidiaries in the course of their business
operations for the period covered thereby (such cash flow projection and budget, as
modified or replaced from time to time with the approval of the Administrative Agent and
the Required Lenders, including without limitation any Revised Approved Budget pursuant to
Section 2.06(e)(iv), the “Approved Budget”), and (ii) as soon as available and in any
event not earlier than 60 days and not later than 30 days prior to the end of 2009 and
each subsequent calendar year, a proposed consolidated, detailed monthly budget prepared
on a line-item basis for the following calendar year, in detail, form and substance
satisfactory to the Administrative Agent and the Required Lenders showing all revenues
projected to be received and all expenditures projected to be made by the Borrower
and its Subsidiaries in the course of their business operations for the period
covered thereby. Administrative Agent and the Required Lenders shall review each proposed
budget after receipt thereof and Borrower shall promptly make any and all changes as
Administrative Agent or the Required Lenders may request. As soon as available, Borrower
shall provide to the Lenders



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significant revisions, if any, of the Approved Budget or any
subsequent budget and projections. Any amendments to or replacements of the Approved
Budget shall be required to be approved by the Administrative Agent and the Required
Lenders. The initial Approved Budget is attached as Schedule VII hereto.




     (g) Recapitalization Plan Status Reports. Periodically in accordance with
the Recapitalization Plan, status reports with respect to implementation of the
Recapitalization Plan in detail, form and substance satisfactory in all respects to the
Administrative Agent and the Required Lenders. It is understood and agreed that the
Borrower’s compliance with the reporting requirements set forth on page 3 of the
Recapitalization Plan shall satisfy this Section 5.03(g) so long as such reporting is
rendered in accordance with the Recapitalization Plan and is in detail, form and substance
satisfactory in all respects to the Administrative Agent and the Required Lenders.




     (h) [Intentionally Omitted].




     (i) 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.




     (j) 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.




     (k) 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 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.




     (l) 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.



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       (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).




     (m) 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 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.




     (n) 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 Subsidiaries as the Administrative Agent, or any Lender Party
through the Administrative Agent, may from time to time request.



   SECTION 5.04 [Intentionally Omitted]



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 2.06 (other than Section 2.06(e)(iii)), 2.14, 5.01 (other than to the
extent



72









 







provided in the proviso to Section 5.01(x) and subject to compliance with the
requirements of such proviso), 5.02 or 5.03; 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 $500,000 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 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 $500,000 shall be rendered against any Loan Party or any of its
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



73









 







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 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 $500,000; or




     (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 $500,000 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 B Lender pursuant to Section 2.03(c)) to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may
with the consent, of the Required Lenders,


74









 






(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 B Lender pursuant to Section 2.03(c)) 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 at any 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 B Lenders, as applicable, to the extent permitted by applicable
law. After each Letter of Credit issued or deemed to have been 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 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
Issuing Bank (if applicable) and on behalf of itself and its Affiliates as potential Hedge


75









 







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
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



76









 







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 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


77









 







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 Rata Shares of the aggregate Available Amount of all Letters of Credit outstanding
at such time, and (iii) their respective Unused Revolving Credit B Commitments at such time,
provided that the aggregate principal amount of Letter of Credit Advances owing to the Issuing Bank
shall be considered to be owed to the Revolving Credit B Lenders ratably in accordance with their
respective Revolving Credit B 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 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




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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 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



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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.




          (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




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(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:




     (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.



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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.



          (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



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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 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.



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     (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
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



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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 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 1551 North Tustin Avenue, Suite
300, Santa Ana, California 92705, Attention: Chief Financial Officer, telecopier number (714)
667-0315 (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,
1551 North Tustin Avenue, Suite 300, Santa Ana, California 92705, Attention: Chief Financial
Officer, telecopier number (714) 667-0315 (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 200 Crescent Court, Suite 550, Dallas, Texas 75201, Attention: Linda J. Davis,
telecopier number (214) 740-7910; 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



85









 







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 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



86









 






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
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 9.04 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



87









 







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) 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.



          (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 9.04 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



88









 






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
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.




          (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



89









 






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 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



90









 







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 Bank. 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 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.



     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



91









 







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
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.



     SECTION 9.15 Pre-Negotiation Agreement. This Agreement and the other Loan Documents
shall each constitute a “written agreement” within the meaning of Section 3 of the Pre-Negotiation
Agreement.



     SECTION 9.16 Limited Waiver. To the extent any Defaults or Events of Default existed
under the Existing Agreement that would not have existed had this Agreement become effective as of
December 31, 2008, such Defaults or Events of Default are waived for the period ending on the
Effective Date of this Agreement.



[Signature Pages Follow]




92









 





          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	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: EVP & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS AFFILIATES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MANAGEMENT SERVICES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF ARIZONA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS CONSULTING SERVICES COMPANY
	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS INSTITUTIONAL PROPERTIES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 






 









 






	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF MICHIGAN, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MORTGAGE GROUP, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS OF NEVADA, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS NEW YORK, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS ADVISERS OF CALIFORNIA, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	HSM INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

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

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 






 









 






	 	 	 	 	 	 	 
	 	 	LANDAUER HOSPITALITY
INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	LANDAUER SECURITIES, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS MANAGEMENT SERVICES OF 

MICHIGAN, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS EUROPE, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	NNN REALTY ADVISORS, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS REALTY INVESTORS, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	TRIPLE NET PROPERTIES REALTY, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 






 









 






	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS RESIDENTIAL MANAGEMENT, INC.
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GERA PROPERTY ACQUISITION LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GERA 6400 SHAFER LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GERA ABRAMS CENTRE LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Richard W. Pehlke	 	 
	 

	 	 	 	 

Name: Richard W. Pehlke
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS ALESCO GLOBAL ADVISORS, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Joseph Welsh	 	 
	 

	 	 	 	 

Name: Joseph Welsh
	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	NNN/ROC APARTMENT HOLDINGS, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS HOUSING, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 

Name: Michael J. Rispoli
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS APARTMENT REIT ADVISOR, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/  Stanley J. Olander, Jr.	 	 
	 

	 	 	 	 

Name: Stanley J. Olander, Jr.
	 	 
	 

	 	 	 	Title: CEO and President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS HEALTHCARE REIT ADVISOR, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Jeffery T. Hanson	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  Jeffery T. Hanson
	 	 
	 

	 	 	 	Title:     CEO	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS HEALTHCARE REIT II ADVISOR, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Jeffery T. Hanson	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  Jeffery T. Hanson
	 	 
	 

	 	 	 	Title:     CEO	 	 
	 
	 	 	 	 	 	 
	 	 	NNN ROCKY MOUNTAIN EXCHANGE, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  Michael J. Rispoli
	 	 
	 

	 	 	 	Title:     CFO	 	 
	 
	 	 	 	 	 	 
	 	 	NNN 200 GALLERIA MEMBER, LLC
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Michael J. Rispoli	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  Michael J. Rispoli
	 	 
	 

	 	 	 	Title:     CFO	 	 






	 	 	 	 	 
	ACKNOWLEDGED AND	 	 
	AGREED TO WITH RESPECT TO

	 	 
	SECTIONS 2.06(e) and 5.01(s):

	 	 
	 
	 	 	 	 
	GERA DANBURY LLC	 	 
	 
	 	 	 	 
	By:
	 	/s/ Richard W. Pehlke	 	 
	 	 	 
	 	 
	 

	 	Name:  Richard W. Pehlke
	 	 
	 

	 	Title:    CFO	 	 






 









 





	 	 	 	 	 	 	 
	 	 	 	 	DEUTSCHE BANK TRUST COMPANY
	 	 	 	 	AMERICAS, as Administrative Agent,
	 	 	 	 	Initial Lender, Initial Issuing Bank
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ James Rolison	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  James Rolison	 	 
	 

	 	 	 	Title:    Managing
Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ George R. Reynolds	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Name:  George R. Reynolds
	 	 
	 

	 	 	 	Title:    Director	 	 






 









 






	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.,
	as a Lender
	 
	 	 	 	 
	By
	 	/s/ Jacqueline P. Yardley	 	 
	 

	 	 

Name: Jacqueline P. Yardley
	 	 
	 

	 	Title: Senior Vice President	 	 






 









 








	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION,
	as a Lender
	 
	 	 	 	 
	By
	 	/s/ James T. Freel	 	 
	 

	 	 

Name: James T. Freel
	 	 
	 

	 	Title: Senior Vice President	 	 












 









 











	 	 	 	 	 	 	 
	FIFTH THIRD BANK,	 	 
	       as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Matthew D. Rodgers	 	 
	 

	 	 	 	 

Name: Matthew D. Rodgers
	 	 
	 

	 	 	 	Title: Vice President