EX-10.1






Exhibit 10.1




 





CREDIT AGREEMENT




Dated as of February 13, 2009




by and among




LEXINGTON REALTY TRUST,




LEPERCQ CORPORATE INCOME FUND L.P.,




LEPERCQ CORPORATE INCOME FUND II L.P.,




and




NET 3 ACQUISITION L.P.,




as Borrowers




KEYBANC CAPITAL MARKETS,




as Lead Arranger




and




Book Running Manager,




KEYBANK NATIONAL ASSOCIATION,




as Agent,




and




THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO

AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5,




as Lenders




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I  — DEFINITIONS
	 	 	1	 
	Section 1.1. Definitions 
	 	 	1	 
	Section 1.2. General; References to Times 
	 	 	24	 
	Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries 
	 	 	24	 
	ARTICLE II  — CREDIT FACILITY
	 	 	24	 
	Section 2.1. Term Facility Loans 
	 	 	24	 
	Section 2.2. Revolving Facility Loans 
	 	 	25	 
	Section 2.3. Letters of Credit 
	 	 	26	 
	Section 2.4. Rates and Payment of Interest on Loans 
	 	 	31	 
	Section 2.5. Number of Interest Periods 
	 	 	31	 
	Section 2.6. Repayment of Loans 
	 	 	32	 
	Section 2.7. Prepayments 
	 	 	32	 
	Section 2.8. Continuation 
	 	 	33	 
	Section 2.9. Conversion 
	 	 	33	 
	Section 2.10. Notes 
	 	 	33	 
	Section 2.11. Voluntary Reduction of the Commitment 
	 	 	34	 
	Section 2.12. Extension of Termination Date 
	 	 	34	 
	Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination Date 
	 	 	35	 
	Section 2.14. Amount Limitations 
	 	 	36	 
	Section 2.15. Increase in Facility Amount 
	 	 	36	 
	Section 2.16. Joint and Several Liability 
	 	 	37	 
	Section 2.17. Borrower Representative 
	 	 	38	 
	Section 2.18. Security Interests in Collateral 
	 	 	39	 
	ARTICLE III  — PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
	 	 	39	 
	Section 3.1. Payments 
	 	 	39	 
	Section 3.2. Pro Rata Treatment 
	 	 	40	 
	Section 3.3. Sharing of Payments, Etc. 
	 	 	40	 
	Section 3.4. Several Obligations 
	 	 	41	 
	Section 3.5. Minimum Amounts 
	 	 	41	 
	Section 3.6. Fees 
	 	 	41	 
	Section 3.7. Computations 
	 	 	42	 
	Section 3.8. Usury 
	 	 	42	 
	Section 3.9. Agreement Regarding Interest and Charges 
	 	 	43	 
	Section 3.10. Statements of Account 
	 	 	43	 
	Section 3.11. Defaulting Lenders 
	 	 	43	 
	Section 3.12. Taxes 
	 	 	45	 
	ARTICLE IV  — YIELD PROTECTION, ETC. 
	 	 	46	 
	Section 4.1. Additional Costs; Capital Adequacy 
	 	 	46	 
	Section 4.2. Suspension of LIBOR Loans 
	 	 	48	 
	Section 4.3. Illegality 
	 	 	48	 
	Section 4.4. Compensation 
	 	 	48	 
	Section 4.5. Affected Lenders 
	 	 	49	 
	Section 4.6. Treatment of Affected Loans 
	 	 	49	 
	Section 4.7. Change of Lending Office 
	 	 	50	 






-i-









 






	 	 	 	 	 
	Section 4.8. Assumptions Concerning Funding of LIBOR Loans
	 	 	50	 
	ARTICLE V. — CONDITIONS PRECEDENT
	 	 	50	 
	Section 5.1. Initial Conditions Precedent
	 	 	50	 
	Section 5.2. Conditions Precedent to All Loans and Letters of Credit
	 	 	52	 
	ARTICLE VI. — REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	Section 6.1. Representations and Warranties
	 	 	53	 
	Section 6.2. Survival of Representations and Warranties, Etc.
	 	 	59	 
	ARTICLE VII. — AFFIRMATIVE COVENANTS
	 	 	59	 
	Section 7.1. Preservation of Existence and Similar Matters
	 	 	60	 
	Section 7.2. Compliance with Applicable Law and Material Contracts
	 	 	60	 
	Section 7.3. Maintenance of Property
	 	 	60	 
	Section 7.4. Conduct of Business
	 	 	60	 
	Section 7.5. Insurance
	 	 	60	 
	Section 7.6. Payment of Taxes and Claims
	 	 	61	 
	Section 7.7. Visits and Inspections
	 	 	61	 
	Section 7.8. Use of Proceeds; Letters of Credit
	 	 	61	 
	Section 7.9. Environmental Matters
	 	 	61	 
	Section 7.10. Books and Records
	 	 	62	 
	Section 7.11. Further Assurances
	 	 	62	 
	Section 7.12. Release of a Guarantor
	 	 	62	 
	Section 7.13. REIT Status
	 	 	63	 
	Section 7.14. Exchange Listing
	 	 	63	 
	Section 7.15. Addition of Borrowing Base Assets
	 	 	63	 
	Section 7.16. Removal of Borrowing Base Assets
	 	 	64	 
	Section 7.17. Failure of Certain Borrowing Base Assets Representations and
Warranties
	 	 	64	 
	Section 7.18. Article 8 Securities
	 	 	65	 
	ARTICLE VIII. — INFORMATION
	 	 	65	 
	Section 8.1. Quarterly Financial Statements
	 	 	65	 
	Section 8.2. Year-End Statements
	 	 	66	 
	Section 8.3. Compliance Certificate
	 	 	66	 
	Section 8.4. Other Information
	 	 	66	 
	ARTICLE IX. — NEGATIVE COVENANTS
	 	 	68	 
	Section 9.1. Financial Covenants
	 	 	68	 
	Section 9.2. Restricted Payments
	 	 	69	 
	Section 9.3. Indebtedness
	 	 	70	 
	Section 9.4. Certain Permitted Investments
	 	 	70	 
	Section 9.5. Investments Generally
	 	 	71	 
	Section 9.6. Liens; Negative Pledges; Other Matters
	 	 	72	 
	Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements
	 	 	72	 
	Section 9.8. Fiscal Year
	 	 	74	 
	Section 9.9. Modifications to Material Contracts
	 	 	74	 
	Section 9.10. Modifications of Organizational Documents
	 	 	74	 
	Section 9.11. Transactions with Affiliates
	 	 	74	 
	Section 9.12. ERISA Exemptions
	 	 	74	 
	ARTICLE X. — DEFAULT
	 	 	74	 






-ii-









 






	 	 	 	 	 
	Section 10.1. Events of Default
	 	 	74	 
	Section 10.2. Remedies Upon Event of Default
	 	 	78	 
	Section 10.3. Remedies Upon Default
	 	 	79	 
	Section 10.4. Allocation of Proceeds
	 	 	79	 
	Section 10.5. Performance by Agent
	 	 	80	 
	Section 10.6. Rights Cumulative
	 	 	80	 
	ARTICLE XI. — THE AGENT
	 	 	80	 
	Section 11.1. Authorization and Action
	 	 	80	 
	Section 11.2. Agent’s Reliance, Etc.
	 	 	81	 
	Section 11.3. Notice of Defaults
	 	 	82	 
	Section 11.4. KeyBank as Lender
	 	 	82	 
	Section 11.5. Approvals of Lenders
	 	 	82	 
	Section 11.6. Lender Credit Decision, Etc.
	 	 	83	 
	Section 11.7. Indemnification of Agent
	 	 	83	 
	Section 11.8. Successor Agent
	 	 	84	 
	Section 11.9. Titled Agents
	 	 	85	 
	ARTICLE XII. — MISCELLANEOUS
	 	 	85	 
	Section 12.1. Notices
	 	 	85	 
	Section 12.2. Expenses
	 	 	86	 
	Section 12.3. Setoff
	 	 	87	 
	Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers
	 	 	87	 
	Section 12.5. Successors and Assigns
	 	 	88	 
	Section 12.6. Amendments
	 	 	90	 
	Section 12.7. Nonliability of Agent and Lenders
	 	 	92	 
	Section 12.8. Confidentiality
	 	 	92	 
	Section 12.9. Indemnification
	 	 	93	 
	Section 12.10. Termination; Survival
	 	 	95	 
	Section 12.11. Severability of Provisions
	 	 	96	 
	Section 12.12. GOVERNING LAW
	 	 	96	 
	Section 12.13. Patriot Act
	 	 	96	 
	Section 12.14. Counterparts
	 	 	96	 
	Section 12.15. Obligations with Respect to Loan Parties
	 	 	96	 
	Section 12.16. Limitation of Liability
	 	 	96	 
	Section 12.17. Entire Agreement
	 	 	97	 
	Section 12.18. Construction
	 	 	97	 






-iii-









 





	 	 	 
	SCHEDULE 1.1(A)

	 	List of Loan Parties
	SCHEDULE 6.1.(b)

	 	Ownership Structure
	SCHEDULE 6.1.(f)

	 	Title to Properties; Liens
	SCHEDULE 6.1.(g)

	 	Indebtedness and Guaranties
	SCHEDULE 6.1.(h)

	 	Material Contracts
	SCHEDULE 6.1.(i)

	 	Litigation
	SCHEDULE 6.1.(j)

	 	Taxes
	 
	 	 
	EXHIBIT A

	 	Form of Assignment and Acceptance Agreement
	EXHIBIT B

	 	Form of Notice of Borrowing
	EXHIBIT C

	 	Form of Notice of Continuation
	EXHIBIT D

	 	Form of Notice of Conversion
	EXHIBIT E

	 	Form of Note
	EXHIBIT F

	 	Form of Opinion of Counsel
	EXHIBIT G

	 	Form of Compliance Certificate
	EXHIBIT H

	 	Form of Guaranty
	EXHIBIT I

	 	Form of Borrowing Base Certificate
	EXHIBIT J

	 	Representations and Warranties relating to Borrowing Base Assets
	EXHIBIT K

	 	Initial Borrowing Base Assets






-iv-









 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Agreement”) dated as of February 13, 2009 by and among LEXINGTON
REALTY TRUST, a real estate investment trust formed under the laws of the State of Maryland (the
“Trust”), LEPERCQ CORPORATE INCOME FUND L.P., a limited partnership formed under the laws of the
State of Delaware (“LCIF”), LEPERCQ CORPORATE INCOME FUND II L.P., a limited partnership formed
under the laws of the State of Delaware (“LCIFII”) and NET 3 ACQUISITION L.P., a limited
partnership formed under the laws of the State of Delaware (“Net 3”; collectively with the Trust,
LCIF and LCIFII, the “Borrowers” and each a “Borrower”), KEYBANC CAPITAL MARKETS, as Sole Lead
Arranger (the “Arranger”) and Sole Book Running Manager (the “Book Running Manager”), KEYBANK
NATIONAL ASSOCIATION, as Agent (the “Agent”), and each of the financial institutions initially a
signatory hereto together with their assignees pursuant to Section 12.5(d).



     WHEREAS, on the terms and conditions contained herein, the Agent and the Lenders desire to
make available to the Borrowers a senior secured term loan in the aggregate amount of
$165,000,000.00 (the “Term Facility”) and a senior secured revolving credit facility in the
aggregate amount of $85,000,000.00, which will include a $10,000,000.00 letter of credit
sub-facility (the “Revolving Facility”, and collectively with the Term Facility, the “Facility”),
each subject to increase as provided herein.



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



ARTICLE I. - DEFINITIONS




Section 1.1. Definitions.




     In addition to terms defined elsewhere herein, the following terms shall have the following
meanings for the purposes of this Agreement:



     “Additional Costs” has the meaning given that term in Section 4.1.



     “Adjusted EBITDA” means, for any given period, (a) the EBITDA of the Trust and its
Subsidiaries determined on a consolidated basis for such period, minus (b) Capital Reserves
for such period.



     “Adjusted LIBOR” means, with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus the
stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the interest rate on LIBOR
Loans is determined or any applicable category of extensions of credit or other assets which
includes loans by an office of any Lender outside of the United States of America to residents of
the United States of America). Any change in such maximum rate shall result in a change in Adjusted
LIBOR on the date on which such change in such maximum rate becomes effective.



1









 





     “Affiliate” means any Person (other than the Agent or any Lender or any of their respective
affiliates): (a) directly or indirectly controlling, controlled by, or under common control with,
the Trust; (b) directly or indirectly owning or holding ten percent (10.0%) or more of any Equity
Interest in the Trust; or (c) ten percent (10.0%) or more of whose voting stock or other Equity
Interest is directly or indirectly owned or held by the Trust. For purposes of this definition,
“control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under
common control with”) means the possession directly or indirectly of the power to direct or cause
the direction of the management and policies of a Person, whether through the ownership of voting
securities or by contract or otherwise. The Affiliates of a Person shall include any executive
officer or director of such Person. In no event shall the Agent or any Lender or any of their
respective affiliates be deemed to be an Affiliate.



     “Agent” means KeyBank National Association, as contractual representative for the Lenders
under the terms of this Agreement, and any of its successors.



     “Agreement Date” means the date as of which this Agreement is dated.



     “Applicable Law” means all applicable provisions of constitutions, statutes, laws, rules,
regulations and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.



     “Applicable Margin” means the percentage rate set forth below:



	 	 	 
	Applicable Margin for LIBOR Loans
	 	Applicable Margin for Base Rate Loans
	2.85%
	 	2.85%






     “Arranger” means Keybanc Capital Markets, together with its successors and permitted assigns.



     “Assignee” has the meaning given that term in Section 12.5(d).



     “Assignment and Acceptance Agreement” means an Assignment and Acceptance Agreement among a
Lender, an Assignee and the Agent and Borrower Representative, as applicable, substantially in the
form of Exhibit A.



     “Base Rate” means the per annum rate of interest equal to the greater of (a) the Prime Rate,
(b) the Federal Funds Effective Rate plus one-half of one percent (0.5%), or (c) the
then-applicable Adjusted LIBOR for a one month interest period plus one percent (1.00%) per annum.
Any change in the Base Rate resulting from a change in the Prime Rate, the Federal Funds Effective
Rate or the Adjusted LIBOR shall become effective as of 12:01 a.m. on the Business Day on which
each such change occurs. The Base Rate is a reference rate used by the Lender acting as the Agent
in determining interest rates on certain loans and is not intended to be the lowest rate of
interest charged by the Lender acting as the Agent or any other Lender on any extension of credit
to any debtor.



     “Base Rate Loan” means a Loan bearing interest at a rate based on the Base Rate.



2









 





     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.



     “Borrower” has the meaning set forth in the introductory paragraph hereof and shall include a
Borrower’s successors and permitted assigns.



     “Borrower Representative” means the Trust.



     “Borrowing Base Assets” means Eligible Unencumbered Properties that have been approved by the
Agent and the Requisite Lenders for inclusion in the Borrowing Base Assets Pool.



     “Borrowing Base Assets Pool” means, collectively at any time, all Borrowing Base Assets. The
initial Borrowing Base Assets Pool is set forth on the schedule of initial Borrowing Base Assets
annexed hereto as Exhibit K.



     “Borrowing Base Availability” means the lesser of (i) the Value of the Borrowing Base Assets
in the Borrowing Base Assets Pool multiplied by fifty percent (50%) and (ii) the Net Operating
Income for the trailing two quarters annualized of the Borrowing Base Assets in the Borrowing Base
Assets Pool divided by 1.75, and then further divided by the Deemed Rate (expressed as a
percentage).



     “Borrowing Base Certificate” means a certificate, identifying the Borrowing Base Assets,
setting forth the calculation of Borrowing Base Availability, and providing other information
concerning the Borrowing Base Assets and the Borrowers, in the form attached hereto as Exhibit I.



     “Business Day” means (a) any day other than a Saturday, Sunday or other day on which banks in
Boston, Massachusetts are authorized or required to close and (b) with reference to a LIBOR Loan,
any such day that is also a day on which dealings in Dollar deposits are carried out in the London
interbank market.



     “Capital Reserves” means, for any period and with respect to a Property, an amount equal to
(a) $0.05 per square foot times (b) a fraction, the numerator of which is the number of days in
such period and the denominator of which is 365. If the term Capital Reserves is used without
reference to any specific Property, then the amount shall be determined on an aggregate basis with
respect to all Properties of the Trust and its Subsidiaries and a proportionate share of all
Properties of all Unconsolidated Affiliates.



     “Capitalization Rate” means 8.50%.



     “Capitalized Lease Obligation” means an obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized
Lease Obligation is the capitalized amount of such obligation as would be required to be reflected
on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable
date.



3









 





     “Capitalized Value” means the sum of all of the following of the Borrowers and its
Subsidiaries on a consolidated basis determined in accordance with GAAP applied on a consistent
basis: (a) cash and cash equivalents, plus (b) Adjusted EBITDA for the two most recent quarters
divided by the Capitalization Rate, plus (c) the GAAP book value of Properties acquired during the
two most recent quarters, plus (d) Construction-in-Process until the Project is substantially
complete which in no case will go beyond 18 months from commencement, plus (e) the GAAP book value
of Unimproved Land, mortgages and notes. Borrowers’ pro rata share of Unconsolidated Affiliates
will be included in calculations of Capitalized Value consistent with the above treatment for
wholly owned assets.



     “Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of
America or any of its agencies with maturities of not more than one year from the date acquired;
(b) certificates of deposit with maturities of not more than one year from the date acquired issued
by a United States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member of the Organization
for Economic Cooperation and Development, or a political subdivision of any such country, acting
through a branch or agency, which bank has capital and unimpaired surplus in excess of
$500,000,000.00 and which bank or its holding company has a short-term commercial paper rating of
at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse
repurchase agreements with terms of not more than seven days from the date acquired, for securities
of the type described in clause (a) above and entered into only with commercial banks having the
qualifications described in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State thereof and rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in each
case with maturities of not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended, which have net assets
of at least $500,000,000.00 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.



     “Collateral Account” means a special non-interest bearing deposit account or securities
account maintained by, or on behalf of, the Agent and under its sole dominion and control.



     “Collateral” has the meaning set forth in the Pledge Agreement.



     “Commitment” means, as to each Lender, such Lender’s (a) obligation to make Term Facility
Loans and/or Revolving Facility Loans pursuant to Section 2.1. and 2.2 respectively and (b) to
issue (in the case of the Lender then acting as Agent) or participate (in the case of the other
Revolving Lenders) Letters of Credit pursuant to Section 2.3(a) and 2.3(i) respectively (but in the
case of the Lender acting as the Agent excluding the aggregate amount of participations in the
Letters of Credit held by the other Revolving Lenders) in an amount up to, but not exceeding, the
amount set forth herein as such Lender’s Term Loan Commitment and/or Revolving Loan Commitment.



     “Commitment Percentage” means, as to each Lender, the ratio, expressed as a percentage, of
(a) the aggregate amount of such Lender’s Term Loan Commitment and Revolving Loan Commitment to
(b) the aggregate amount of the Term Loan Commitments and



4









 







Revolving Loan Commitments of all Lenders; provided, however, that if at the time of
determination any applicable Commitments have terminated or been reduced to zero, the “Commitment
Percentage” of each Lender shall be the Commitment Percentage of such Lender in effect immediately
prior to such termination or reduction.



     “Compliance Certificate” has the meaning given that term in Section 8.3.



     “Confirmation Request” has the meaning given that term in Section 7.15(a).



     “Construction Budget” means the fully-budgeted costs for the acquisition and construction of a
given parcel of real property (including, without limitation, the cost of acquiring such parcel of
real property, reserves for construction interest and operating deficits, tenant improvements,
leasing commissions and infrastructure costs) as reasonably determined by the Trust in good faith.



     “Construction-in-Process” means cash expenditures for land and improvements (including
indirect costs internally allocated and development costs) determined in accordance with GAAP on
all Properties that are under development or are scheduled to commence development within twelve
months from any date of determination.



     “Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.8.



     “Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type
into a Loan of another Type pursuant to Section 2.9.



     “Credit Event” means any of the following: (a) the making (or deemed making) of any Loan,
(b) the Conversion of a Loan, or (c) the issuance of a Letter of Credit.



     “Credit Underwriting Documents” has the meaning given that term in Section 7.15(a).



     “Debt Service” means, for any period, the sum of (a) Interest Expense, excluding the
amortization of deferred financing costs and the impact of FSB APB 14-1 in accordance with GAAP for
such period, and (b) all regularly scheduled principal payments made with respect to Indebtedness
of the Trust and its Subsidiaries during such period, other than any balloon, bullet, early
repayment or similar principal payment which, in each case, repays such Indebtedness in full. Debt
Service shall include a proportionate share of items (a) and (b) of all Unconsolidated Affiliates.



     “Deemed Rate” means, as of any date of determination, the greater of (i) eight percent (8.0%),
(ii) the prevailing rate of 10 year United States treasury notes plus two and one half percent
(2.50%) and a twenty five (25) year amortization, or (iii) the weighted average of the interest
rates then in effect under the Facility.



     “Default” means any of the events specified in Section 10.1, whether or not there has been
satisfied any requirement for the giving of notice, the lapse of time, or both.



     “Defaulting Lender” has the meaning given that term in Section 3.11.



5









 





     “Derivatives Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.



     “Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been
closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Derivatives Contracts (which may include Agent or any Lender).



     “Development Property” means a Property which is being developed to become an office,
industrial or retail property.



     “Dollars” or “$” means the lawful currency of the United States of America.



     “EBITDA” means, with respect to a Person for any period (without duplication): (a) net income
(loss) of such Person for such period determined on a consolidated basis (prior to any impact from
minority interests), in accordance with GAAP, excluding the following (but only to the
extent included in determination of such net income (loss)): (i) depreciation and amortization;
(ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or non-recurring gains and
losses; (v) noncash charges; and (vi) gains and losses from sales of assets; plus (b) such
Person’s pro rata share of EBITDA of its Unconsolidated Affiliates. EBITDA shall be adjusted to
remove any impact from straight line rent leveling adjustments required under GAAP and amortization
of intangibles associated with the amortization of above or below market rents pursuant to
Statement of Financial Accounting Standards No. 141.



     “Effective Date” means the later of: (a) the Agreement Date; and (b) the date on which all of
the conditions precedent set forth in Section 5.1 shall have been fulfilled or waived in writing by
the Requisite Lenders.



6









 





     “Eligible Assignee” means any Person who is, at the time of determination: (i)  a Lender or an
affiliate of a Lender; (ii) a commercial bank, trust, trust company, insurance company, investment
bank or pension fund organized under the laws of the United States of America, or any state
thereof, and having total assets in excess of $5,000,000,000.00; (iii) a savings and loan
association or savings bank organized under the laws of the United States of America, or any state
thereof, and having a tangible net worth of at least $500,000,000.00; or (iv) a commercial bank
organized under the laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and having total
assets in excess of $10,000,000,000.00, provided that such bank is acting through a branch or
agency located in the United States of America. Notwithstanding the foregoing, while an Event of
Default under subsection (a), (b), (e), (f) or (g) of Section 10.1 exists, “Eligible Assignee”
shall mean any Person that is not an individual.



     “Eligible Unencumbered Property” means a Property which satisfies all of the following
requirements: (a) such Property is owned in fee simple or subject to a Ground Lease by the Trust or
a Subsidiary; (b) such Property is an office, industrial or retail Property; (c) such Property is
leased with minimum Occupancy Ratio of eighty percent (80%) with tenants in occupancy; (d) such
tenants are not more than 30 days past due in respect of lease payments; (e) such Property is free
of all structural defects or major architectural deficiencies, title defects, environmental
conditions or other adverse matters except for defects, deficiencies, conditions or other matters
individually or collectively which are not material to the profitable operation of such Property;
and (f) such Property is free of any liens other than Permitted Liens.



     “Environmental Laws” means any Applicable Law relating to environmental protection or the
manufacture, storage, treatment, disposal or clean-up of Hazardous Materials including, without
limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; regulations of the United States Environmental Protection Agency and any applicable rule of
common law and any judicial interpretation thereof relating primarily to environmental protection
or Hazardous Materials.



     “Equity Interest” means, with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase
or other acquisition from such Person of any share of capital stock of (or other ownership or
profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.



     “Equity Issuance” means any issuance by a Person of any Equity Interest in such Person and
shall in any event include the issuance of any Equity Interest upon the conversion or



7









 







exchange of any security constituting Indebtedness that is convertible or exchangeable, or is
being converted or exchanged, for Equity Interests.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to
time.



     “ERISA Group” means the Borrowers, any of their Subsidiaries and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated) under common
control which, together with the Borrowers or any of their Subsidiaries, are treated as a single
employer under Section 414 of the Internal Revenue Code.



     “Event of Default” means any of the events specified in Section 10.1, provided that any
requirement for notice or lapse of time or any other condition has been satisfied.



     “Existing Credit Agreement” means, collectively: (i) that certain Credit Agreement dated as of
June 1, 2007, as amended, by and among the Borrowers, the institutions from time to time party
thereto as Lenders and KeyBank, as Agent, (ii) that certain Credit Agreement dated as of June 27,
2005, as amended, by and among Lexington Corporate Properties Trust, LCIF, LCIFII, Net 3, the
institutions from time to time party thereto as Lenders and Wachovia Bank, National Association, as
Agent, and (iii) the agreements, instruments and other documents executed in connection with such
credit agreements.



     “Existing LC” means, collectively, those certain standby letters of credit # SM214417W in the
amount of $114,500.00, # SM230895W in the amount of $563,636.28, # SM230896W in the amount of
$508,321.44, # SM232318W in the amount $459,464.00 and # SM233167W in the amount of $27,242.00
issued by Wachovia Bank, National Association for the account of the Borrower under the Existing
Credit Agreement.



     “Facility” has the meaning set forth in the second introductory paragraph.



     “Facility Amount” means two hundred fifty million dollars ($250,000,000.00), subject to
increase pursuant to Section 2.15 hereof or decrease pursuant to Section 2.11 hereof.



     “Facility Interest Expense” means, as of any date of determination for a particular period, an
amount equal to the interest that would accrue during such period on the then aggregate principal
amount outstanding of the Loans at an interest rate equal to the sum of (i) the Adjusted LIBOR on
such date of determination for an Interest Period of one (1) month plus (ii) the Applicable
Margin for LIBOR Loans on such date of determination.



     “Fair Market Value” means, with respect to (a) a security listed on a national securities
exchange or the NASDAQ National Market, the price of such security as reported on such exchange or
market by any widely recognized reporting method customarily relied upon by financial institutions
and (b) with respect to any other property, the price which could be negotiated in an arm’s-length
free market transaction, for cash, between a willing seller and a willing buyer, neither of which
is under pressure or compulsion to complete the transaction.



     “Federal Funds Effective Rate” means, for any day, the rate per annum (rounded upward to the
nearest 1/100th of 1%) equal to the weighted average of the rates on overnight



8









 







Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if such day is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Effective Rate for such day shall be the average rate quoted to the Agent by federal funds
dealers selected by the Agent on such day on such transaction as determined by the Agent.



     “Fee Letter” means that certain Fee Letter dated as of the date hereof by and among the
Trust, the Lead Arranger and KeyBank.



     “Fees” means the fees and commissions provided for or referred to in Section 3.6 and any other
fees payable by the Borrowers hereunder or under any other Loan Document.



     “Fixed Charges” means, for any period, the sum of (a) Debt Service for such period and (b) all
Preferred Dividends paid during such period. The Trust’s pro rata share of the Fixed Charges of
Unconsolidated Affiliates of the Trust shall be included in determinations of Fixed Charges.



     “Floating Rate Indebtedness” means all Indebtedness of a Person which bears interest at a
variable rate during the scheduled life of such Indebtedness and for which such Person has not
obtained interest rate swap agreements, interest rate “cap” or “collar” agreements or other similar
Derivatives Contracts which effectively cause such variable rates to be equivalent to fixed rates
acceptable to the Agent.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other
than the United States of America, any State thereof or the District of Columbia.



     “Funds From Operations” means, for a given period, net income (loss) of the Borrower and its
Subsidiaries determined on a consolidated basis for such period exclusive of the following (to the
extent included in the determination of such net income (loss)): (a) gains (or losses) from debt
restructuring and sales of property during such period, (b) any non-cash charges recorded from
asset impairments and (c) depreciation with respect to real estate assets and amortization (other
than amortization of deferred financing costs) of such Person for such period, all after adjustment
for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated entities will
be calculated to reflect funds from operations on the same basis. Funds From Operations will be
adjusted to remove all impact of straight lining of rents, amortization of intangibles associated
with the amortization of above or below market rents, pursuant to Statement of Financial Accounting
Standards No. 141 and calculation of interest expense in accordance with FSB APB 14-1.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of



9









 







the accounting profession, which are applicable to the circumstances as of the date of
determination.



     “Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.



     “Governmental Authority” means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance
Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any
comparable authority) or any arbitrator with authority to bind a party at law.



     “Ground Lease” means a ground lease containing the following terms and conditions: (a) a
remaining term (including any unexercised extension options that the lessee can unilaterally
exercise without the need to obtain the consent of the lessor or to pay the lessor any amount as a
condition to the effectiveness of such extension) of 15 years or more from the Agreement Date;
(b) the right of the lessee to mortgage and encumber its interest in the leased property without
the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage Lien
on such leased property written notice of any defaults on the part of the lessee and agreement of
such lessor that such lease will not be terminated until such holder has had a reasonable
opportunity to cure or complete foreclosures, and fails to do so; (d) reasonable transferability of
the lessee’s interest under such lease, including ability to sublease; and (e) such other rights
customarily required by mortgagees making a loan secured by the interest of the holder of the
leasehold estate demised pursuant to a ground lease; provided that the ground lease with respect to
the Property located in Palo Alto, California owned by Newkirk Orper L.P. shall be deemed to
satisfy the requirements of a Ground Lease hereunder.



     “Guarantor” means any Person that is or becomes a party to the Guaranty as a “Guarantor” in
that such Person directly, or indirectly through one or more other Subsidiaries, owns any Property
Subsidiary.



     “Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any obligation means
and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection
or deposit in the ordinary course of business), directly or indirectly, in any manner, of any part
or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and
whether or not constituting a guaranty, the practical effect of which is to assure the payment or
performance (or payment of damages in the event of nonperformance) of any part or all of such
obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or
lease (as lessee or lessor) of property or the purchase or sale of services primarily for the
purpose of enabling the obligor with respect to such obligation to make any payment or performance
(or payment of damages in the event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to
or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of
amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of such Person’s
obligation under a Guaranty of any obligation or



10









 







indemnifying or holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, “Guaranty” shall also mean the Guaranty to which the
Guarantors are parties substantially in the form of Exhibit H.



     “Hazardous Materials” means all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous
substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation
intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity or
“EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids
or synthetic gas and drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials; (d) asbestos in any form;
(e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million.



     “Impacted Lender” is defined to mean a Defaulting Lender or a Lender as to which (1) the Agent
has a good faith belief that the Lender has defaulted in fulfilling its obligations under one or
more other syndicated credit facilities or (2) an entity that Controls the Lender has been deemed
insolvent or become subject to a bankruptcy or other similar proceeding.  “Control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise.  “Controlling” and “Controlled” have meanings correlative thereto



     “Increase Effective Date” has the meaning given that term in Section 2.15.



     “Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in respect of money borrowed;
(b) all obligations of such Person, whether or not for money borrowed (i) represented by notes
payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by
bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar instruments, upon
which interest charges are customarily paid or that are issued or assumed as full or partial
payment for property or services rendered; (c) Capitalized Lease Obligations of such Person;
(d) all reimbursement obligations (contingent or otherwise) of such Person in respect of letters of
credit or acceptances (whether or not the same have been presented for payment); (e) all
Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable
Stock issued by such Person or any other Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) all obligations of such
Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to
the extent the obligation can be satisfied by the issuance of Equity Interests (other than
Mandatorily Redeemable Stock)); (h) net obligations under any Derivatives Contract not entered into
as a hedge against existing Indebtedness, in an amount equal to the Derivatives Termination Value
thereof; (i) all Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person (except for guaranties of



11









 







customary exceptions for fraud, misapplication of funds, environmental indemnities and other
similar events, and other similar exceptions to nonrecourse liability (but not exceptions relating
to voluntary bankruptcy, insolvency, or receivership or other similar events)); (j) all
Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property or assets owned by
such Person, even though such Person has not assumed or become liable for the payment of such
Indebtedness or other payment obligation; and (k) such Person’s pro rata share of the Indebtedness
of any Unconsolidated Affiliate of such Person. All Loans and Letters of Credit Liabilities shall
constitute Indebtedness of the Borrowers.



     “Initial Facility Amount’ means three hundred million dollars ($300,000,000.00).



     “Intellectual Property” has the meaning given that term in Section 6.1(t).



     “Interest Expense” means, for any period, without duplication, (a) total interest expense of
the Trust and its Subsidiaries, including capitalized interest not funded under a construction loan
interest reserve account, determined on a consolidated basis for such period, plus (b) the Trust’s
pro rata share of Interest Expense of Unconsolidated Affiliates for such period.



     “Interest Period” means with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made or the last day of the next preceding Interest Period for such Loan and
ending on the 13th day of the month which is 1, 2, 3 or 6 months thereafter, as the Borrowers may
select in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the case may
be. Notwithstanding the foregoing if any Interest Period would otherwise end after the Termination
Date, such Interest Period shall end on the Termination Date.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



     “Investment” means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, whether by means of: (a) the purchase or other
acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit
to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute the business or a division or operating unit of another
Person. Any binding commitment to make an Investment in any other Person, as well as any option of
another Person to require an Investment in such Person, shall constitute an Investment. Except as
expressly provided otherwise, for purposes of determining compliance with any covenant contained in
a Loan Document, the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such Investment.



     “KeyBank” means KeyBank National Association, together with its successors and assigns.



     “L/C Commitment Amount” equals up to $10,000,000.00.



12









 





     “Lender” means each financial institution from time to time party hereto as a “Lender”,
together with its respective successors and permitted assigns.



     “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment and Acceptance
Agreement, or such other office of such Lender of which such Lender may notify the Agent in writing
from time to time.



     “Letter of Credit” has the meaning given that term in Section 2.3(a).



     “Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any
application therefor, any certificate or other document presented in connection with a drawing
under such Letter of Credit and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations.



     “Letter of Credit Liabilities” means, without duplication, at any time and in respect of any
Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate
unpaid principal amount of all Reimbursement Obligations at such time due and payable in respect of
all drawings made under such Letter of Credit. For purposes of this Agreement, a Revolving Lender
(other than the Lender acting as the Agent) shall be deemed to hold a Letter of Credit Liability in
an amount equal to its participation interest in the related Letter of Credit under Section 2.3(i),
and the Lender acting as the Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after giving effect to the
acquisition by the Revolving Lenders other than the Lender acting as the Agent of their
participation interests under such Section.



     “LIBOR” means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(expressed to the fifth decimal place) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term “LIBOR” shall mean, for
any LIBOR Loan for any Interest Period therefor, the rate per annum (expressed to the fifth decimal
place) appearing on the Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on the Reuters Screen LIBO Page, the applicable rate shall be the arithmetic
mean of all such rates. If for any reason none of the foregoing rates is available, LIBOR shall be,
for any Interest Period, the rate per annum reasonably determined by the Agent as the rate of
interest at which Dollar deposits in the approximate amount of the LIBOR Loan comprising part of
such borrowing would be offered by the Agent to major banks in the London interbank Eurodollar
market at their request at or about 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period.



     “LIBOR Loan” means a Loan, bearing interest at a rate based on LIBOR.



13









 





     “Lien” as applied to the property of any Person means: (a) any security interest, encumbrance,
mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, charge
or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention
agreement, or other security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied,
under which any property of such Person is transferred, sequestered or otherwise identified for the
purpose of subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than any precautionary filing not otherwise constituting or giving rise to a
Lien, including a financing statement filed (i) in respect of a lease not constituting a
Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the Uniform
Commercial Code or its equivalent as in effect in an applicable jurisdiction or (ii) in connection
with a sale or other disposition of accounts or other assets not prohibited by this Agreement in a
transaction not otherwise constituting or giving rise to a Lien; and (d) any agreement by such
Person to grant, give or otherwise convey any of the foregoing.



     “Loan” means a loan made by a Lender to any Borrower pursuant to Section 2.1(a) or 2.2(a).



     “Loan Document” means this Agreement, each Note, each Letter of Credit Document, the Pledge
Agreement, the Guaranty and each other document or instrument now or hereafter executed and
delivered by a Loan Party in connection with, pursuant to or relating to this Agreement.



     “Loan Party” means each of the Borrowers and each Person who guarantees all or a portion of
the Obligations and/or who pledges any collateral security to secure all or a portion of the
Obligations. Schedule 1.1.(A) sets forth the Loan Parties in addition to the Borrower as of the
Agreement Date.



     “LRT Entity” means each Person in which the Agent, on behalf of the Lenders, is granted a lien
on the ownership interests pursuant to the Pledge Agreement.



     “Mandatorily Redeemable Stock” means, with respect to the Trust or any Subsidiary, any Equity
Interest thereof which by the terms of such Equity Interest (or by the terms of any security into
which it is convertible or for which it is exchangeable or exercisable), upon the happening of any
event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock
or other equivalent common Equity Interests), (b) is convertible into or exchangeable or
exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of
the holder thereof, in whole or in part (other than an Equity Interest which is redeemable solely
in exchange for common stock or other equivalent common Equity Interests), in each case on or prior
to the Termination Date. For the avoidance of doubt, the parties hereto agree that the following
Equity Interests of the Trust do not qualify as Mandatorily Redeemable Stock based on their terms
as in effect on the Agreement Date: (w) 8.05% Series B Cumulative Redeemable Preferred Stock
established pursuant to Articles Supplementary filed by the Trust on June 17, 2003 with the
Department of Assessments and Taxation of the State of



14









 







Maryland, (x) 6.50% Series C Cumulative Convertible Preferred Stock established pursuant to
Articles Supplementary filed by the Trust on December 8, 2004 with the Department of Assessments
and Taxation of the State of Maryland, (y) 7.55% Series D Cumulative Redeemable Preferred Stock
established pursuant to Articles Supplementary filed by the Trust on February 14, 2007 with the
Department of Assessments and Taxation of the State of Maryland, and (z) 5.45% Exchangeable
Guaranteed Notes due 2027 established pursuant to an Indenture and First Supplemental Indenture
dated as of January 29, 2007, and a Second Supplemental Indenture dated as of March 9, 2007.



     “Material Adverse Effect” means a materially adverse effect on (a) the business or financial
condition of the Trust and its Subsidiaries taken as a whole, (b) the ability of any Borrower or
any other Loan Party to perform its obligations under any Loan Document to which it is a party,
(c) the validity or enforceability of any of the Loan Documents, or (d) the rights and remedies of
the Lenders and the Agent under any of the Loan Documents.



     “Material Contract” means any contract or other arrangement (other than Loan Documents),
whether written or oral, to which any Borrower, any other Loan Party or any other Subsidiary is a
party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto
could reasonably be expected to have a Material Adverse Effect.



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



     “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument
made by a Person owning an interest in real property granting a Lien on such interest in real
property as security for the payment of Indebtedness of such Person or another Person.



     “Mortgage Receivable” means a promissory note secured by a Mortgage of which a Borrower, a
Guarantor or one of their respective Subsidiaries is the holder and retains the rights of
collection of all payments thereunder.



     “Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during such five year
period.



     “Negative Pledge” means, with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning
such asset or any other Person; provided, however, that an agreement that conditions a Person’s
ability to encumber its assets upon the maintenance of one or more specified ratios that limit such
Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.



     “Net Operating Income” means, for any Property and for a given period, the sum of the
following (without duplication and determined on a consistent basis with prior periods): (a) rents
and other revenues received in the ordinary course from such Property (including proceeds of



15









 







rent loss or business interruption insurance but excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants’ obligations for rent)
(the foregoing, collectively “Gross Revenues”) minus (b) all expenses paid (excluding interest but
including an appropriate accrual for property taxes and insurance) related to the ownership,
operation or maintenance of such Property, including but not limited to property taxes, assessments
and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses,
marketing expenses, and general and administrative expenses (including an appropriate allocation
for legal, accounting, advertising, marketing and other expenses incurred in connection with such
Property, but specifically excluding general overhead expenses of a Borrower or any Subsidiary and
any property management fees).



     “Net Proceeds” means with respect to any Equity Issuance by a Person or any Permitted
Financing by a Person, the aggregate amount of all cash and the Fair Market Value of all other
property (other than securities of such Person being converted or exchanged in connection with any
such Equity Issuance or Permitted Financing) received by such Person in respect of such Equity
Issuance or Permitted Financing net of investment banking fees, legal fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses actually incurred by
such Person in connection with such Equity Issuance or Permitted Financing. Notwithstanding the
foregoing, Net Proceeds will not include net proceeds from any Equity Issuance to the extent used
to redeem an existing class of Equity Interest of the Trust or any of its Subsidiaries.



     “Nonrecourse Indebtedness” means, with respect to a Person, Indebtedness for borrowed money in
respect of which recourse for payment (except for customary exceptions for fraud, misapplication of
funds, environmental indemnities, bankruptcy, insolvency, receivership and other similar events,
and other similar exceptions to nonrecourse liability) is contractually limited to specific assets
of such Person encumbered by a Lien securing such Indebtedness. Liability of a Person under a
completion guarantee for a Development Property, to the extent relating to the Nonrecourse
Indebtedness of another Person, shall not, in and of itself, prevent such liability from being
characterized as Nonrecourse Indebtedness.



     “Note” has the meaning given that term in Section 2.10(a).



     “Notice of Borrowing” means a notice in the form of Exhibit B to be delivered to the Agent
pursuant to Section 2.1(b) and Section 2.2(b) evidencing the Borrowers’ request for a borrowing of
Loans.



     “Notice of Continuation” means a notice in the form of Exhibit C to be delivered to the Agent
pursuant to Section 2.8 evidencing the Borrowers’ request for the Continuation of a LIBOR Loan.



     “Notice of Conversion” means a notice in the form of Exhibit D to be delivered to the Agent
pursuant to Section 2.9 evidencing the Borrowers’ request for the Conversion of a Loan from one
Type to another Type.



     “Obligations” means, individually and collectively: (a) the aggregate principal balance of,
and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all



16









 







other Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations,
covenants and duties of the Borrowers and the other Loan Parties owing to the Agent or any Lender
of every kind, nature and description, under or in respect of this Agreement or any of the other
Loan Documents, including, without limitation, the Fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.



     “Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed as a
percentage, of (a) the net rentable square footage of such Property leased by tenants that are not
Affiliates paying rent at rates not materially less than rates generally prevailing at the time the
applicable lease was entered into, pursuant to binding leases as to which no monetary default has
occurred and has continued unremedied for 30 or more days to (b) the aggregate net rentable square
footage of such Property.



     “OFAC” means U.S. Department of the Treasury’s Office of Foreign Assets Control and any
successor Governmental Authority.



     “Off-Balance Sheet Obligations” means liabilities and obligations of any Person in respect of
“off-balance sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which the Trust
would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” section of the report on Form 10-Q or Form 10-K (or their equivalents)
which the Trust is required to file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor). As used in this definition, the term “SEC
Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About
Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5,
2003) (codified at 17 CFR pts. 228, 229 and 249).



     “Operating Partnership” means LCIF, LCIFII or Net 3.



     “Participant” has the meaning given that term in Section 12.5(c).



     “PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.



     “Permitted Financing” means a sale or refinancing of a Borrowing Base Asset.



     “Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any
of the provisions of ERISA or pursuant to any Environmental Laws) or the claims of materialmen,
mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, which are not at the time required to be paid or discharged
under Section 7.6; (b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under workers’ compensation,
unemployment insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in the
nature of zoning restrictions, easements, and rights or restrictions of record on the use of real
property, which do not materially detract from the value of such property for its intended business
use or impair the intended business use thereof in the business of such Person; (d) the rights of
tenants under leases or subleases not interfering with the ordinary conduct of business of such
Person; (e) Liens in favor of the Agent for the benefit of



17









 







the Lenders; (f) Liens in favor of a Borrower or a Guarantor securing obligations owing by a
Subsidiary to such Borrower or such Guarantor, which obligations have been subordinated to the
Obligations on terms satisfactory to the Agent; and (g) Liens in existence as of the Agreement Date
and set forth in Part II of Schedule 6.1(g).



     “Person” means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency or political
subdivision thereof.



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



     “Pledge Agreement” means collectively each pledge agreement now or hereafter executed among
the Borrowers, the Guarantor and the Agent for the benefit of the Lenders, as amended and in effect
from time to time, together with any other security document now or hereafter granted to secure the
Obligations.



     “Post-Default Rate” means, in respect of any principal of any Loan or any other Obligation
that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate per annum equal to the Base Rate as in effect from time to time
plus the Applicable Margin for Base Rate Loans plus four percent (4.0%).



     “Preferred Dividends” means, for any period and without duplication, all Restricted Payments
paid during such period on Preferred Equity Interests issued by a Borrower or another Subsidiary.
Preferred Dividends shall not include dividends or distributions (a) paid or payable solely in
Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of
Equity Interests, (b) paid or payable to a Borrower or another Subsidiary, or (c) constituting or
resulting in the redemption of Preferred Equity Interests, other than scheduled redemptions not
constituting balloon, bullet or similar redemptions in full.



     “Preferred Equity Interests” means, with respect to any Person, Equity Interests in such
Person which are entitled to preference or priority over any other Equity Interest in such Person
in respect of the payment of dividends or distribution of assets upon liquidation or both.



     “Prime Rate” means the rate of interest established by the Agent, from time to time, as its
“prime rate”, whether or not publicly announced. The Prime Rate is not necessarily the best or the
lowest rate of interest charged by the Agent for commercial loans or other extensions of credit.



     “Principal Office” means the office of the Agent located at 225 Franklin Street, Boston,
Massachusetts, or such other office of the Agent as the Agent may designate from time to time.



18









 





     “Property” means any parcel of real property owned or leased (in whole or in part) or operated
by any Borrower, any Subsidiary or any Unconsolidated Affiliate of the Borrowers and which is
located in a state of the United States of America or in the District of Columbia.



     “Property Subsidiary” means a Subsidiary, the Equity Interests of which are wholly-owned,
directly or indirectly by a Borrower or a Guarantor and that directly owns or leases a Property
that is included in the Borrowing Base Assets Pool.



     “Register” has the meaning given that term in Section 12.5(e).



     “Regulatory Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy.



     “Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the
Borrowers to reimburse the Agent for any drawing honored by the Agent under a Letter of Credit.



     “REIT” means a Person qualifying for treatment as a “real estate investment trust” under the
Internal Revenue Code.



     “Removal Request” has the meaning given that term in Section 7.16(a).



     “Requisite Lenders” means, as of any date, Lenders having at least 66-2/3% of the aggregate
amount of the Commitments (not held by Defaulting Lenders who are not entitled to vote), or, if the
Commitments have been terminated or reduced to zero, Lenders holding at least 66-2/3% of the
principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities (not held by
Defaulting Lenders who are not entitled to vote), provided that in the event the Term Loan
Commitments have been deemed terminated as a result of a repayment in full of the Term Facility,
Requisite Lenders shall also require at least three (3) Revolving Lenders unless (a) there are only
three (3) Revolving Lenders hereunder in which event two (2) Revolving Lenders will be required, or
(b) there are less than three (3) Revolving Lenders hereunder in which event all of the Revolving
Lenders shall be required. Commitments, Loans and Letter of Credit Liabilities held by Defaulting
Lenders shall be disregarded when determining the Requisite Lenders. For purposes of this
definition, a Lender shall be deemed to hold a Letter of Credit Liability to the extent such Lender
has acquired a participation therein under the terms of this Agreement and has not failed to
perform its obligations in respect of such participation.



     “Responsible Officer” means with respect to a Borrower or any other Subsidiary, the chief
executive officer and the chief financial officer of such Borrower or such Subsidiary.



19









 





     “Restricted Payment” means: (a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest of the Trust or any Subsidiary now or hereafter outstanding, except
a dividend payable solely in Equity Interests of identical class to the holders of that class;
(b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any Equity Interest of the Trust or any
Subsidiary now or hereafter outstanding; and (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of
the Trust or any Subsidiary now or hereafter outstanding.



     “Revolving Facility” has the meaning set forth in the second introductory paragraph.



     “Revolving Facility Amount” means eighty five million dollars ($85,000,000.00), subject to
increase pursuant to Section 2.15 hereof or decrease pursuant to Section 2.11 hereof.



     “Revolving Facility Loan” means a loan made by a Lender to any Borrower pursuant to Section
2.2(a).



     “Revolving Lenders” shall mean the various Lenders which have each issued a Revolving Loan
Commitment hereunder.



     “Revolving Loan Commitment” means the amount set forth for such Lender on its signature page
hereto as such Lender’s “Revolving Loan Commitment”, or as set forth in the applicable Assignment
and Acceptance Agreement, as the same may be reduced from time to time pursuant to Section 2.11, or
increased or reduced as appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5, or increased in accordance with Section 2.15.



     “Revolving Loan Commitment Percentage” means, as to each Lender with a Revolving Loan
Commitment, the ratio, expressed as a percentage, of (a) the aggregate amount of such Lender’s
Revolving Loan Commitment to (b) the aggregate amount of the Revolving Loan Commitments of all
Lenders; provided, however, that if at the time of determination the Revolving Loan Commitment have
terminated or been reduced to zero, the “Revolving Loan Commitment Percentage” of each Lender shall
be the Revolving Loan Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.



     “Revolving Loan Exposure” means, from time to time, the aggregate of (a) the outstanding
Revolving Facility Loans made by the Lenders, and (b) the Letter of Credit Liabilities.



     “Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published from time to time, as
such program may be applicable to such agency, organization or Person.



     “Sanctioned Person” means a Person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the OFAC as published from time to time.



20









 





     “Section 1031 Exchange” means a like kind tax-free exchange of real property interests in
accordance with Section 1031 of the Internal Revenue Code.



     “Secured Indebtedness” means, with respect to a Person, (a) all Indebtedness of such Person
that is secured in any manner by any Lien on any property, plus (b) such Person’s pro rata
share of the Secured Indebtedness of any such Person’s Unconsolidated Affiliates.



     “Securities Act” means the Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.



     “Solvent” means, when used with respect to any Person, that (a) the fair value and the fair
salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are
each in excess of the fair valuation of its total liabilities (including all contingent liabilities
computed at the amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and matured liability);
(b) such Person is able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its business and all
business in which it proposes to be engaged.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.



     “Stabilized Property” means a completed Property that has at any time achieved an Occupancy
Rate of at least 80%.



     “Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of
Credit from time to time, as such amount may be increased or reduced from time to time in
accordance with the terms of such Letter of Credit.



     “Subsidiary” means, for any Person, any corporation, partnership or other entity of which at
least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect
a majority of the board of directors or other individuals performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries
of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all
Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.
Notwithstanding the foregoing, Sunset Park West Limited Partnership, Sunset Park Business Trust,
One Woodstock Associates Limited Partnership and CTO Associates Limited Partnership shall be
subsidiaries hereunder, with the Borrowing Base Availability of the Properties owned by such
entities being adjusted to reflect the Borrowers’ pro rata ownership interest in such entities.



     “Tangible Net Worth” means, as of a given date, (a) the stockholders’ equity of the Trust and
Subsidiaries determined on a consolidated basis, plus (b) accumulated depreciation and
amortization, minus (c) the following (to the extent reflected in determining stockholders’ equity
of the Trust and its Subsidiaries): (i) the amount of any write-up in the book value of any assets
contained in any balance sheet resulting from revaluation thereof or any write-up in excess of the
cost of such assets acquired, and (ii) all amounts appearing on the assets side of any such balance



21









 







sheet for assets which would be classified as intangible assets under GAAP, other than
intangibles required to be recorded under Statement of Financial Accounting Standards No. 141, all
determined on a consolidated basis. Notwithstanding the foregoing, (x) amortization of above or
below market rents pursuant to Statement of Financial Accounting Standards No. 141 shall not be
excluded under either of the preceding clauses (i) or (ii) and (y) the effect of marked-to-market
adjustments required to be made under GAAP with respect to assumed indebtedness shall be excluded
when determining Tangible Net Worth.



     “Taxes” has the meaning given that term in Section 3.12.



     “Term Facility” has the meaning set forth in the second introductory paragraph.



     “Term Facility Amount” means one hundred sixty five million dollars ($165,000,000.00), subject
to increase pursuant to Section 2.15 hereof or decrease pursuant to Section 2.11 hereof.



     “Term Facility Loan” means a loan made by a Lender to any Borrower pursuant to Section 2.1(a).



     “Term Lenders” shall mean the various Lenders which have each issued a Term Loan Commitment
hereunder.



     “Term Loan Commitment” means the amount set forth for such Lender on its signature page hereto
as such Lender’s “Term Loan Commitment”, or as set forth in the applicable Assignment and
Acceptance Agreement, as the same may be reduced from time to time pursuant to Section 2.11, or
increased or reduced as appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5, or increased in accordance with Section 2.15.



     “Term Loan Commitment Percentage” means, as to each Term Lender, the ratio, expressed as a
percentage, of (a) the aggregate amount of such Lender’s Term Loan Commitment to (b) the aggregate
amount of the Term Loan Commitments of all Lenders; provided, however, that if at the time of
determination the Term Loan Commitment have terminated or been reduced to zero, the “Term Loan
Commitment Percentage” of each Lender shall be the Term Loan Commitment Percentage of such Lender
in effect immediately prior to such termination or reduction.



     “Termination Date” means the earlier of (a) the date on which the Commitments are reduced to
zero under Section 2.11 or (b) February 13, 2011 (or such later date to which the Termination Date
may be extended pursuant to Section 2.12).



     “Titled Agents” means each of the Arranger, the Book Running Manager and their respective
successors and permitted assigns.



     “Total Available Commitments” means, at any time of determination, the lesser of (a) the
aggregate amount of the Commitments at such time, or (b) the then Borrowing Base Availability.



22









 





     “Total Indebtedness” means all Indebtedness of the Trust and all of its Subsidiaries
determined on a consolidated basis.



     “Type” with respect to any Loan, refers to whether such Loan is a LIBOR Loan or Base Rate
Loan.



     “UCC”: means the Uniform Commercial Code from time to time in effect in The State of New York;
provided, that if by mandatory provisions of law, the perfection or the effect of perfection or
non-perfection of the security interest granted hereunder in the any Collateral is governed by the
Uniform Commercial Code of a jurisdiction other than New York, “UCC” means the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of provisions hereof relating to such
perfection or effect of perfection or non-perfection.



     “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such
Person holds an Investment, which Investment is accounted for in the financial statements of such
Person on an equity basis of accounting and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial statements of such
Person.



     “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the Fair Market Value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.



     “Unimproved Land” means land on which no development (other than paving or other improvements
that are not material and are temporary in nature) has occurred and for which no construction is
planned in the following 12 months.



     “Value” means (a) with respect to (i) any Property in the Borrowing Base Assets Pool acquired
prior to January 1, 2008 or (ii) any Property in the Borrowing Base Assets Pool acquired after
January 1, 2008 with respect to which there has been, in the reasonable determination of the Agent,
material change in the operating economics of the Property, (A) the Net Operating Income of such
Property for the fiscal quarter most recently ended, times (B) 4 divided by (C) the Capitalization
Rate and (b) with respect to any other Property in the Borrowing Base Assets Pool, the value of
such Property based on cost determined in accordance with GAAP.



     “Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the
equity securities or other ownership interests (other than, in the case of a corporation,
directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such
Person or one or more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person.



23









 





Section 1.2. General; References to Times.




     Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP; provided that, if at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any Loan Document, and
either the Borrowers or the Requisite Lenders shall so request, the Agent, the Lenders and the
Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the Requisite Lenders);
provided further that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide
to the Agent and the Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP. References in
this Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles,
exhibits and schedules herein and hereto unless otherwise indicated. References in this Agreement
to any document, instrument or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or agreements issued or executed
in replacement thereof, to the extent permitted hereby and (c) shall mean such document, instrument
or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or
otherwise modified as of the date of this Agreement and from time to time thereafter to the extent
not prohibited hereby and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the contrary, a reference
to “Subsidiary” means a Subsidiary of the Trust or a Subsidiary of such Subsidiary and a reference
to an “Affiliate” means a reference to an Affiliate of the Trust. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement. Unless otherwise indicated, all references to time are
references to Charlotte, North Carolina time.



Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.




     When determining the Trust’s compliance with any financial covenant contained in any of the
Loan Documents, only the Trust’s pro rata share of the financial attributes of a Subsidiary that is
not a Wholly Owned Subsidiary shall be included.



ARTICLE II. - CREDIT FACILITY 




 Section 2.1. Term Facility Loans.



     (a) Generally. Subject to the terms and conditions hereof, during the period from the
Effective Date to but excluding the Termination Date, each Term Lender severally and not jointly
agrees to make Term Facility Loans to the Borrowers in an aggregate principal amount at any one
time outstanding up to, but not exceeding, the amount of such Lender’s Term Loan Commitment. The
aggregate amount of Term Facility Loans shall not at any time exceed the lesser of (i) the Term
Facility Amount, (ii) the aggregate Term Loan Commitments, or (iii) the



24









 







Borrowing Base Availability less the Revolving Loan Exposure. The Term Facility Loans shall be
funded, subject to satisfaction of all terms and conditions contained herein in an initial single
funding on the Effective Date in an amount not to exceed $165,000,000.00; provided, however, that
Term Facility Loans that may be available for funding as a result of an increase to the Term
Facility Amount pursuant to Section 2.15 hereof may be funded within ninety (90) days of the
Increase Effective Date for such increase.



     (b) Requesting Term Facility Loans. The Borrowers shall give the Agent notice
pursuant to a Notice of Borrowing or telephonic notice of each borrowing of Term Facility Loans.
Each Notice of Borrowing shall be delivered to the Agent before 11:00 a.m. (i) in the case of LIBOR
Loans, on the date three Business Days prior to the proposed date of such borrowing and (ii) in the
case of Base Rate Loans, on the date one Business Day prior to the proposed date of such borrowing.
Any such telephonic notice shall include all information to be specified in a written Notice of
Borrowing and shall be promptly confirmed in writing by the Borrowers pursuant to a Notice of
Borrowing sent to the Agent by telecopy on the same day of the giving of such telephonic notice.
The Agent will transmit by telecopy the Notice of Borrowing (or the information contained in such
Notice of Borrowing) to each Term Lender promptly upon receipt by the Agent. Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once given and binding on the
Borrowers. Together with the notice to the Agent as specified immediately above, the Borrowers
shall deliver to the Agent a completed, current Borrowing Base Certificate.



     (c) Disbursements of Term Facility Loan Proceeds. To the extent that the Term
Facility Amount is increased pursuant to Section 2.15, no later than 1:00 p.m. on the date
specified in the Notice of Borrowing, each Term Lender will make available for the account of its
applicable Lending Office to the Agent at the Principal Office, in immediately available funds, the
proceeds of the Term Facility Loan (if any) to be made by such Term Lender. With respect to Term
Facility Loans to be made after the Effective Date, unless the Agent shall have been notified by
any Term Lender prior to the specified date of borrowing that such Term Lender does not intend to
make available to the Agent the Term Facility Loan to be made by such Term Lender on such date, the
Agent may assume that such Term Lender will make the proceeds of such Term Facility Loan available
to the Agent on the date of the requested borrowing as set forth in the Notice of Borrowing and the
Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the
Borrowers the amount of such Term Facility Loan to be provided by such Lender. Subject to
satisfaction of the applicable conditions set forth in Article V for such borrowing, the Agent will
make the proceeds of such borrowing available to the Borrowers no later than 2:00 p.m. on the date
and at the account specified by the Borrowers in such Notice of Borrowing.



Section 2.2. Revolving Facility Loans.




     (a) Generally. Subject to the terms and conditions hereof, during the period from the
Effective Date to but excluding the Termination Date, each Revolving Lender severally and not
jointly agrees to make Revolving Facility Loans to the Borrowers in an aggregate principal amount
at any one time outstanding up to, but not exceeding, the amount of such Revolving Lender’s
Revolving Loan Commitment. Subject to the terms and conditions of this Agreement, during the period
from the Effective Date to but excluding the Termination Date, the Borrowers



25









 







may borrow, repay and reborrow Revolving Facility Loans hereunder. The aggregate amount of
Revolving Loan Exposure outstanding shall not at any time exceed the lesser of (i) the Revolving
Facility Amount, (ii) the aggregate Revolving Loan Commitments, or (iii) the Borrowing Base
Availability less the outstanding principal balance of the Term Facility Loan.



     (b) Requesting Revolving Loans. The Borrowers shall give the Agent notice pursuant to
a Notice of Borrowing or telephonic notice of each borrowing of Revolving Facility Loans. Each
Notice of Borrowing shall be delivered to the Agent before 11:00 a.m. (i) in the case of LIBOR
Loans, on the date three Business Days prior to the proposed date of such borrowing and (ii) in the
case of Base Rate Loans, on the date one Business Day prior to the proposed date of such borrowing.
Any such telephonic notice shall include all information to be specified in a written Notice of
Borrowing and shall be promptly confirmed in writing by the Borrowers pursuant to a Notice of
Borrowing sent to the Agent by telecopy on the same day of the giving of such telephonic notice.
The Agent will transmit by telecopy the Notice of Borrowing (or the information contained in such
Notice of Borrowing) to each Revolving Lender promptly upon receipt by the Agent. Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once given and binding on the
Borrowers. Together with the notice to the Agent as specified immediately above, the Borrowers
shall deliver to the Agent a completed, current Borrowing Base Certificate.



     (c) Disbursements of Revolving Facility Loan Proceeds. No later than 1:00 p.m. on the
date specified in the Notice of Borrowing, each Revolving Lender will make available for the
account of its applicable Lending Office to the Agent at the Principal Office, in immediately
available funds, the proceeds of the Revolving Facility Loan to be made by such Revolving Lender.
With respect to Revolving Facility Loans to be made after the Effective Date, unless the Agent
shall have been notified by any Revolving Lender prior to the specified date of borrowing that such
Revolving Lender does not intend to make available to the Agent the Revolving Facility Loan to be
made by such Revolving Lender on such date, the Agent may, but shall not be obligated to, assume
that such Revolving Lender will make the proceeds of such Revolving Facility Loan available to the
Agent on the date of the requested borrowing as set forth in the Notice of Borrowing and the Agent
may (but shall not be obligated to), in reliance upon such assumption, make available to the
Borrowers the amount of such Revolving Facility Loan to be provided by such Revolving Lender.
Subject to satisfaction of the applicable conditions set forth in Article V for such borrowing, the
Agent will make the proceeds of such borrowing available to the Borrowers no later than 2:00 p.m.
on the date and at the account specified by the Borrowers in such Notice of Borrowing.



Section 2.3. Letters of Credit.




     (a) Letters of Credit. Subject to the terms and conditions of this Agreement, the
Agent, on behalf of the Lenders, agrees to issue for the account of the Borrowers during the period
from and including the Effective Date to, but excluding, the date 30 days prior to the Termination
Date one or more letters of credit (each a “Letter of Credit”) up to a maximum aggregate Stated
Amount at any one time outstanding not to exceed the L/C Commitment Amount. For the purposes of
this Agreement, the Existing LC shall be deemed issued pursuant to the terms of this Agreement and
shall be considered a Letter of Credit under this Agreement, Wachovia Bank, National Association
shall be entitled to the various benefits of the Agent under



26









 







this Agreement as issuer of the Existing LC and each Revolving Lender shall have the
obligations set forth herein to Wachovia Bank, National Association with respect to the Existing
LC. The Borrowers acknowledge and agree that to the extent there shall be any extension of the
Existing LC, the Borrowers shall utilize commercially reasonable efforts to arrange for the
issuance of a new Letter of Credit by the Agent pursuant to the terms hereof in replacement for the
Existing LC.



     (b) Terms of Letters of Credit. At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject
to the reasonable approval by the Agent and the Borrowers. Notwithstanding the foregoing, in no
event may the expiration date of any Letter of Credit extend beyond the earlier of (i) the date one
year from its date of issuance or (ii) the Termination Date; provided, however, a Letter of Credit
may contain a provision providing for the automatic extension of the expiration date in the absence
of a notice of non-renewal from the Agent but in no event shall any such provision permit the
extension of the expiration date of such Letter of Credit beyond the Termination Date; provided,
further, that a Letter of Credit that contains an automatic extension provision may provide for an
extension of its expiration date to a date not more than one year beyond the Termination Date so
long as the Borrowers deliver to the Agent no later than 20 days prior to the Termination Date
(A) either (1) cash collateral for such Letter of Credit on terms reasonably acceptable to the
Agent, (2) a backup letter of credit having terms acceptable to the Agent and issued by a domestic
financial institution having a rating assigned by a Rating Agency to its senior unsecured long term
indebtedness of AA/Aa2 or (3) other collateral satisfactory to the Agent and all of the Revolving
Lenders and (B) a reimbursement agreement in form and substance acceptable to the Agent and such
other documents requested by the Agent evidencing the Borrowers’ reimbursement obligations in
respect of such Letter of Credit.



     (c) Requests for Issuance of Letters of Credit. The Borrowers shall give the Agent
written notice (or telephonic notice promptly confirmed in writing) at least 5 Business Days prior
to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and the nature of the transactions or
obligations proposed to be supported by such Letter of Credit, and in any event shall set forth
with respect to such Letter of Credit the proposed (i) Stated Amount, (ii) beneficiary, and
(iii) expiration date. The Borrowers shall also execute and deliver such customary letter of
credit application forms as requested from time to time by the Agent. Provided the Borrowers have
given the notice prescribed by the first sentence of this subsection and subject to the other terms
and conditions of this Agreement, including the satisfaction of any applicable conditions precedent
set forth in Article V, the Agent shall issue the requested Letter of Credit on the requested date
of issuance for the benefit of the stipulated beneficiary. Upon the written request of the
Borrowers, the Agent shall deliver to the Borrowers a copy of each issued Letter of Credit within a
reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such Loan Document shall
control.



     (d) Reimbursement Obligations. Upon receipt by the Agent from the beneficiary of a
Letter of Credit of any demand for payment under such Letter of Credit, the Agent shall promptly
notify the Borrowers of the amount to be paid by the Agent as a result of such demand and the date
on which payment is to be made by the Agent to such beneficiary in respect of such demand;
provided, however, the Agent’s failure to give, or delay in giving, such notice shall not



27









 







discharge the Borrowers in any respect from the applicable Reimbursement Obligation. The
Borrowers hereby unconditionally and irrevocably agree to pay and reimburse the Agent for the
amount of each demand for payment under such Letter of Credit on or prior to the date on which
payment is to be made by the Agent to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind (other than notice as provided in this subsection). Upon
receipt by the Agent of any payment in respect of any Reimbursement Obligation, the Agent shall
promptly pay to each Revolving Lender that has acquired a participation therein under the second
sentence of Section 2.3(i) such Lender’s Revolving Loan Commitment Percentage of such payment.



     (e) Manner of Reimbursement. Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrowers shall advise the Agent whether or not the
Borrowers intend to borrow hereunder to finance its obligation to reimburse the Agent for the
amount of the related demand for payment and, if they do, the Borrowers shall submit a timely
request for such borrowing as provided in the applicable provisions of this Agreement. If the
Borrowers fail to so advise the Agent, or if the Borrowers fail to reimburse the Agent for a demand
for payment under a Letter of Credit by the date of such payment, then (i) if the applicable
conditions contained in Article V would permit the making of Revolving Facility Loans, the
Borrowers shall be deemed to have requested a borrowing of Revolving Facility Loans (which shall be
Base Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the Agent shall give
each Revolving Lender prompt notice of the amount of the Revolving Facility Loan to be made
available to the Agent not later than 1:00 p.m. or (ii) if such conditions would not permit the
making of Revolving Facility Loans, the provisions of subsection (j) of this Section shall apply.
The limitations of Section 3.5(a) shall not apply to any borrowing of Base Rate Loans under this
subsection.



     (f) Effect of Letters of Credit on Commitments. Upon the issuance by the Agent of any
Letter of Credit and until such Letter of Credit shall have expired or been terminated, the
Revolving Loan Commitment of each Revolving Lender shall be deemed to be utilized for all purposes
of this Agreement in an amount equal to the product of (i) such Lender’s Revolving Loan Commitment
Percentage and (ii) the sum of (A) the Stated Amount of such Letter of Credit plus (B) any related
Reimbursement Obligations then outstanding.



     (g) Agent’s Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement
Obligations. In examining documents presented in connection with drawings under Letters of
Credit and making payments under Letters of Credit against such documents, the Agent shall only be
required to use the same standard of care as it uses in connection with examining documents
presented in connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrowers assume all risks of
the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Agent
nor any of the Lenders shall be responsible for, and the Borrowers’ obligations in respect of the
Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in connection with
the application for and issuance of or any drawing honored under any Letter of Credit even if it
should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or assigning or



28









 







purporting to transfer or assign any Letter of Credit, or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required
in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether or
not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in
the transmission or otherwise of any document required in order to make a drawing under any Letter
of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of the proceeds
of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond
the control of the Agent or the Lenders. None of the above shall affect, impair or prevent the
vesting of any of the Agent’s or any Lender’s rights or powers hereunder. Any action taken or
omitted to be taken by the Agent under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final, non-appealable judgment), shall not create against the Agent or
any Lender any liability to the Borrowers or any Lender. In this regard, the obligation of the
Borrowers to reimburse the Agent for any drawing made under any Letter of Credit, and to repay any
Revolving Loan made pursuant to the second sentence of the immediately preceding subsection (e),
shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement and any other applicable Letter of Credit Document under all circumstances
whatsoever, including without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions therein; (B) any
amendment or waiver of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right which any Borrower may
have at any time against the Agent, any Lender, any beneficiary of a Letter of Credit or any other
Person, whether in connection with this Agreement, the transactions contemplated hereby or in the
Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute
between any Borrower, the Agent, any Lender or any other Person; (E) any demand, 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 or made in connection therewith being untrue
or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit;
(G) payment by the Agent under any Letter of Credit against presentation of a draft or certificate
which does not strictly comply with the terms of such Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the provisions of this
Section, constitute a legal or equitable defense to or discharge of the Borrowers’ Reimbursement
Obligations. Notwithstanding anything to the contrary contained in this Section or Section 12.9,
but not in limitation of the Borrowers’ unconditional obligation to reimburse the Agent for any
drawing made under a Letter of Credit as provided in this Section and to repay any Revolving Loan
made pursuant to the second sentence of the immediately preceding subsection (e), the Borrowers
shall have no obligation to indemnify the Agent or any Lender in respect of any liability incurred
by the Agent or such Lender arising solely out of the gross negligence or willful misconduct of the
Agent or such Lender in respect of a Letter of Credit as determined by a court of competent
jurisdiction in a final, non-appealable judgment. Except as otherwise provided in this Section,
nothing in this Section shall affect any rights the Borrowers may have with respect to the gross
negligence or willful misconduct of the Agent or any Lender with respect to any Letter of Credit.



29









 





     (h) Amendments, Etc. The issuance by the Agent of any amendment, supplement or other
modification to any Letter of Credit shall be subject to the same conditions applicable under this
Agreement to the issuance of new Letters of Credit (including, without limitation, that the request
therefor be made through the Agent), and no such amendment, supplement or other modification shall
be issued unless either (i) the respective Letter of Credit affected thereby would have complied
with such conditions had it originally been issued hereunder in such amended, supplemented or
modified form or (ii) the Requisite Lenders (or all of the Lenders if required by Section 12.6)
shall have consented thereto. In connection with any such amendment, supplement or other
modification, the Borrowers shall pay the Fees, if any, payable under the last sentence of
Section 3.6(a).



     (i) Lenders’ Participation in Letters of Credit. Immediately upon the issuance by the
Agent of any Letter of Credit each Revolving Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Agent, without recourse or warranty, an undivided
interest and participation to the extent of such Lender’s Revolving Loan Commitment Percentage of
the liability of the Agent with respect to such Letter of Credit, and each Revolving Lender thereby
shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and
shall be unconditionally obligated to the Agent to pay and discharge when due, such Lender’s
Revolving Loan Commitment Percentage of the Agent’s liability under such Letter of Credit. In
addition, upon the making of each payment by a Revolving Lender to the Agent in respect of any
Letter of Credit pursuant to the immediately following subsection (j), such Lender shall,
automatically and without any further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation owing to the Agent
by the Borrowers in respect of such Letter of Credit and (ii) a participation in a percentage equal
to such Lender’s Revolving Loan Commitment Percentage in any interest or other amounts payable by
the Borrowers in respect of such Reimbursement Obligation (other than the Fees payable to the Agent
pursuant to the third and last sentences of Section 3.6(a)). Notwithstanding the foregoing, in the
event of a default in any Lender’s obligations to fund under this Agreement exists or any Lender is
at such time an Impacted Lender, the Agent shall have the right, but not the obligation, to refuse
to issue any Letter of Credit unless the Agent has entered into satisfactory arrangements with the
Borrower and/or such Impacted Lender to eliminate the Agent’s risk with respect to such Impacted
Lender.



     (j) Payment Obligation of Lenders. Each Revolving Lender severally agrees to pay to
the Agent on demand in immediately available funds in Dollars the amount of such Lender’s Revolving
Loan Commitment Percentage of each drawing paid by the Agent under each Letter of Credit to the
extent such amount is not reimbursed by the Borrowers pursuant to Section 2.3(d); provided,
however, that in respect of any drawing under any Letter of Credit, the maximum amount that any
Revolving Lender shall be required to fund, whether as a Revolving Loan or as a participation,
shall not exceed such Lender’s Revolving Loan Commitment Percentage of such drawing. If the notice
referenced in the second sentence of Section 2.3(e) is received by a Revolving Lender not later
than 11:00 a.m., then such Revolving Lender shall make such payment available to the Agent not
later than 2:00 p.m. on the date of demand therefor; otherwise, such payment shall be made
available to the Agent not later than 1:00 p.m. on the next succeeding Business Day. The
obligation of each Revolving Lender to make such payments to the Agent under this subsection, and
the Agent’s right to receive the same, shall be absolute, irrevocable and unconditional and shall
not be affected in any way by any circumstance



30









 







whatsoever, including without limitation, (i) the failure of any other Revolving Lender to
make its payment under this subsection, (ii) the financial condition of any Borrower or any other
Loan Party, (iii) the existence of any Default or Event of Default, including any Event of Default
described in Section 10.1(f) or 10.1(g) or (iv) the termination of the Commitments. Each such
payment to the Agent shall be made without any offset, abatement, withholding or deduction
whatsoever.



     (k) Information to Lenders. The Agent shall periodically deliver to the Revolving
Lenders information setting forth the Stated Amount of all outstanding Letters of Credit. Other
than as set forth in this subsection, the Agent shall have no duty to notify the Revolving Lenders
regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure
of the Agent to perform its requirements under this subsection shall not relieve any Revolving
Lender from its obligations under Section 2.3(j).



Section 2.4. Rates and Payment of Interest on Loans.




     (a) Rates. The Borrowers promise to pay to the Agent for the account of each Lender
interest on the unpaid principal amount of each Loan made by such Lender for the period from and
including the date of the making of such Loan to but excluding the date such Loan shall be paid in
full, at the following per annum rates:




     (i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in
effect from time to time) plus the Applicable Margin; and




     (ii) during such periods as such Loan is a LIBOR Loan, at Adjusted LIBOR for such Loan
for the Interest Period therefor plus the Applicable Margin with respect to such Loan.


Notwithstanding the foregoing, during the continuance of an Event of Default, the Borrowers shall
pay to the Agent for the account of each Lender interest at the Post-Default Rate on the
outstanding principal amount of any Loan made by such Lender, and on any other amount payable by
the Borrowers hereunder or under the Notes held by such Lender to or for the account of such Lender
(including without limitation, accrued but unpaid interest to the extent permitted under Applicable
Law).




     (b) Payment of Interest. Accrued and unpaid interest on each Loan shall be payable
monthly in arrears on the 13th day of each calendar month, provided if such day is not a
Business Day, interest shall be due on the next succeeding Business Day. Interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the Agent shall give notice thereof
to the Lenders to which such interest is payable and to the Borrowers. All determinations by the
Agent of an interest rate hereunder shall be conclusive and binding on the Lenders and the
Borrowers for all purposes, absent manifest error.



Section 2.5. Number of Interest Periods.




     There may be no more than six (6) different Interest Periods for LIBOR Loans outstanding under
each of the Term Facility and the Revolving Facility at the same time.



31









 





Section 2.6. Repayment of Loans.




     The Borrowers shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Loans on the Termination Date.



Section 2.7. Prepayments.




     (a) Optional. Subject to Section 4.4, the Borrowers may prepay any Loan at any time
without premium or penalty, provided that such prepayments shall be applied in such a manner as to
limit, to the extent possible, the amounts due under Section 4.4. The Borrowers shall give the
Agent at least one Business Day’s prior written notice of the prepayment of any Loan.



     (b) Mandatory.




     (i) If at any time the aggregate principal amount of all outstanding Loans exceeds the
Total Available Commitments, the Borrowers shall promptly (and in any event, within
2 Business Days after notice thereof from the Agent) pay to the Agent for the accounts of
the Lenders the amount of such excess. Such payment shall be applied to pay all amounts of
principal outstanding on the Loans pro rata in accordance with Section 3.2. If the
Borrowers are required to pay any outstanding LIBOR Loans by reason of this Section prior to
the end of the applicable Interest Period therefor, the Borrowers shall pay all amounts due
under Section 4.4, provided that such prepayments shall be applied in such a manner as to
limit, to the extent possible, the amounts due under Section 4.4.




     (ii) With respect to each Permitted Financing, or upon the release of any Borrowing
Base Asset from the Borrowing Base Assets Pool as provided in Section 7.16, the Borrowers
shall pay to the Agent on the closing date of such Permitted Financing, for the accounts of
the Lenders, an amount in respect of such transaction equal to the greater of (a) 125% of
the Borrowing Base Availability attributable to the Property subject to such Permitted
Financing or release, or (b) 75% of the Net Proceeds received by the Borrowers in respect of
such Permitted Financing, such prepayment to be applied first to the amounts outstanding
under the Term Facility and then to the amounts outstanding under the Revolving Facility
(provided that such prepayments shall be applied in such a manner as to limit, to the extent
possible, the amounts due under Section 4.4.) provided, however, that no such
prepayment shall be required in connection with a Permitted Financing comprised of the sale
of a Property in the event that the Borrowers utilize the proceeds from such sale in
connection with a Section 1031 Exchange provided that (x) the Section 1031 Exchange is
documented in a manner reasonably acceptable to the Agent and its counsel, (y) any cash
proceeds received by any Loan Party in connection with such Section 1031 Exchange are kept
with a third party intermediary consistent with the requirements of the Internal Revenue
Code and (z) upon the completion such Section 1031 Exchange, the property received by the
Borrowers from such Section 1031 Exchange shall satisfy the requirements for inclusion in
the Borrowing Base Assets Pool in accordance with Section 7.15.



32









 





Section 2.8. Continuation.




     So long as no Default or Event of Default shall exist, the Borrowers may on any Business Day,
with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR
Loan by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period selected
under this Section shall commence on the last day of the immediately preceding Interest Period.
Each selection of a new Interest Period shall be made by the Borrowers giving to the Agent a Notice
of Continuation not later than 11:00 a.m. on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrowers of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans and portions thereof
subject to such Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations on Loans
outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on the
Borrowers once given. Promptly after receipt of a Notice of Continuation, the Agent shall notify
each Lender by telecopy, or other similar form of transmission, of the proposed Continuation. If
the Borrowers shall fail to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if a Default or Event of Default shall exist, such Loan will
automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate
Loan notwithstanding the first sentence of Section 2.9 or the Borrowers’ failure to comply with any
of the terms of such Section.



Section 2.9. Conversion.




     The Borrowers may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to
the Agent, Convert all or a portion of a Loan of one Type into a Loan of another Type; provided,
however, a Base Rate Loan may not be Converted to a LIBOR Loan if a Default or Event of Default
shall exist. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan
into a LIBOR Loan, the Borrowers shall pay accrued interest to the date of Conversion on the
principal amount so Converted. Each such Notice of Conversion shall be given not later than 11:00
a.m. on the Business Day prior to the date of any proposed Conversion into Base Rate Loans and on
the third Business Day prior to the date of any proposed Conversion into LIBOR Loans. Promptly
after receipt of a Notice of Conversion, the Agent shall notify each Lender by telecopy, or other
similar form of transmission, of the proposed Conversion. Subject to the restrictions specified
above, each Notice of Conversion shall be by telephone (confirmed immediately in writing) or
telecopy in the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is
into a LIBOR Loan, the requested duration of the Interest Period of such Loan. Each Notice of
Conversion shall be irrevocable by and binding on the Borrowers once given.



Section 2.10. Notes.




     (a) Note. The Loans made by each Lender shall, in addition to this Agreement, also be
evidenced by a promissory note of the Borrowers substantially in the form of Exhibit E (each



33









 







a “Note”), payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.



     (b) Records. The date, amount, interest rate, Type and duration of Interest Periods
(if applicable) of each Loan made by each Lender to the Borrowers, and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and such entries shall be
binding on the Borrowers, absent manifest error; provided, however, that the failure of a Lender to
make any such record shall not affect the obligations of the Borrowers under any of the Loan
Documents.



     (c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrowers of (i)
written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or
mutilated, and (ii) (A) in the case of loss, theft or destruction, an unsecured agreement of
indemnity from such Lender in form reasonably satisfactory to the Borrowers, or (B) in the case of
mutilation, upon surrender and cancellation of such Note, the Borrowers shall at their own expense
execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or
mutilated Note.



Section 2.11. Voluntary Reduction of the Commitment.




     The Borrowers shall have the right to terminate or reduce the aggregate unused amount of the
Term Facility and/or the Revolving Facility (for which purpose use of the Revolving Facility shall
be deemed to include the aggregate amount of Letter of Credit Liabilities, without duplication) at
any time and from time to time without penalty or premium upon not less than 5 Business Days prior
written notice to the Agent of each such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction and shall be irrevocable once given and
effective only upon receipt by the Agent; provided, however, (a) that Lenders shall be indemnified
for any breakage and redeployment costs associated with any LIBOR Loans, (b) any reductions shall
be the in minimum increments set forth in Section 3.5(c), and (c) if the Borrowers seek to reduce
the aggregate amount of the Revolving Loan Commitments or the Term Loan Commitments below
$50,000,000.00 respectively, then such Commitments shall all automatically and permanently be
reduced to zero. The Agent will promptly transmit such notice to each Lender. The Commitments,
once terminated or reduced may not be increased or reinstated.



Section 2.12. Extension of Termination Date.




     The Borrowers shall have the right, exercisable one time, to extend the Termination Date by
twelve (12) months. The Borrowers may exercise such right only by executing and delivering to the
Agent at least 60 days but not more than 90 days prior to the initial Termination Date, a written
request for such extension (an “Extension Request”). The Agent shall forward to each Lender a copy
of the Extension Request delivered to the Agent promptly upon receipt thereof. Subject to
satisfaction of the following conditions, the Termination Date shall be extended for twelve (12)
months effective upon receipt of the Extension Request and payment of the fee referred to in the
following clause (b): (a) immediately prior to such extension and immediately after giving effect
thereto, (i) no Default or Event of Default shall exist, (ii) the representations and warranties
made or deemed made by the Borrowers and each other Loan Party in the Loan



34









 







Documents to which any of them is a party, shall be true and correct in all material respects
on and as of the date of such extension with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents, and (iii) the Borrowers and each other Loan
Party shall be in compliance with all covenants in the Loan Documents to which any of them is a
party, and (b) the Borrowers shall have paid the Fees payable under Section 3.6(b).



Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination Date.




     (a) If on the date the Revolving Loan Commitments are terminated or reduced to zero (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrowers shall, on such date, pay to the Agent an
amount of money equal to the Stated Amount of such Letter(s) of Credit for deposit into the
Collateral Account.



     (b) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities, the Borrowers hereby pledge and grant to the Agent, for the ratable benefit of the
Agent and the Lenders as provided herein, a security interest in all of their respective right,
title and interest in and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided for below). The
balances from time to time in the Collateral Account shall not constitute payment of any Letter of
Credit Liabilities until applied by the Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal
only as provided in this Section.



     (c) Amounts on deposit in the Collateral Account shall be invested and reinvested by the Agent
in such Cash Equivalents as the Agent shall determine in its sole discretion. All such investments
and reinvestments shall be held in the name of and be under the sole dominion and control of the
Agent for the ratable benefit of the Lenders. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Collateral Account and shall be deemed to have
exercised such care if such funds are accorded treatment substantially equivalent to that which the
Agent accords other funds deposited with the Agent, it being understood that the Agent shall not
have any responsibility for taking any necessary steps to preserve rights against any parties with
respect to any funds held in the Collateral Account.



     (d) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of
such Letter of Credit, the Borrowers and the Lenders authorize the Agent to use the monies
deposited in the Collateral Account and proceeds thereof to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment.



     (e) If an Event of Default exists, the Requisite Lenders may, in their discretion, at any time
and from time to time, instruct the Agent to liquidate any such investments and reinvestments and
apply proceeds thereof to the Obligations in accordance with Section 10.4.



35









 





     (f) So long as no Default or Event of Default exists, and to the extent amounts on deposit in
or credited to the Collateral Account exceed the aggregate amount of the Letter of Credit
Liabilities then due and owing, the Agent shall, from time to time, at the request of the
Borrowers, deliver to the Borrowers within 10 Business Days after the Agent’s receipt of such
request from the Borrowers, against receipt but without any recourse, warranty or representation
whatsoever, such amount of the credit balances in the Collateral Account as exceeds the aggregate
amount of the Letter of Credit Liabilities at such time.



     (g) The Borrowers shall pay to the Agent from time to time such fees as the Agent normally
charges for similar services in connection with the Agent’s administration of the Collateral
Account and investments and reinvestments of funds therein.



Section 2.14. Amount Limitations.




     Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall
be required to make a Loan, and no reduction of any Commitments pursuant to Section 2.11 shall take
effect, if immediately after the making of such Loan or such reduction in the Commitments the
aggregate principal amount of all outstanding Revolving Facility Loans or Term Facility Loans would
exceed the aggregate amount of the subject Term Loan Commitments or Revolving Loan Commitments at
such time.



Section 2.15. Increase in Facility Amount.




     (a) With the prior consent of the Agent, the Borrowers shall have the right at any time and
from time to time during the term of this Agreement to request increases in the amount of the Term
Facility (provided that after giving effect to any increases in the Term Facility pursuant to this
Section, the aggregate amount of the Term Loan Commitments may not exceed $300,000,000.00) by
providing written notice to the Agent, which notice shall be irrevocable once given. Each such
increase in the Term Facility must be in a minimum amount of $10,000,000.00 and must not exceed an
aggregate maximum amount of $135,000,000.00.



     (b) With the prior consent of the Agent, the Borrowers shall have the right at any time and
from time to time during the term of this Agreement to request increases in the amount of the
Revolving Facility (provided that after giving effect to any increases in the Revolving Facility
pursuant to this Section, the aggregate amount of the Revolving Facility Commitments may not exceed
$200,000,000.00) by providing written notice to the Agent, which notice shall be irrevocable once
given. Each such increase in the Revolving Facility must be in an aggregate minimum amount of
$10,000,000.00 and must not exceed an aggregate maximum amount of $115,000,000.00.



     (c) Notwithstanding the provisions of Section 11.5, no Lender shall be required to increase
its Commitment and any new Lender becoming a party to this Agreement in connection with any such
requested increase must be an Eligible Assignee. If a new Lender becomes a party to this
Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the
date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender)
(and as a condition thereto) purchase from the other Lenders its Commitment Percentage (or in the
case of an existing Lender, the increase in the amount of its Commitment



36









 







Percentage, in each case as determined after giving effect to the increase of Commitments) of
any outstanding Loans, by making available to the Agent for the account of such other Lenders at
the Principal Office, in same day funds, an amount equal to the sum of (A) the portion of the
outstanding principal amount of such Loans to be purchased by such Lender plus (B) the aggregate
amount of payments previously made by the other Lenders under Section 2.3(j) which have not been
repaid plus (C) interest accrued and unpaid to and as of such date on such portion of the
outstanding principal amount of such Loans. The Borrowers shall pay to the Lenders amounts
payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Loans.
No increase of the Commitments may be effected under this Section if (x) a Default or Event of
Default shall be in existence on the effective date of such increase or (y) any representation or
warranty made or deemed made by any Borrower or any other Loan Party in any Loan Document to which
any such Loan Party is a party is not (or would not be) true or correct in all material respects on
the effective date of such increase (except for representations or warranties which expressly
relate solely to an earlier date). In connection with any increase in the aggregate amount of the
Commitments pursuant to this subsection, (a) any Lender becoming a party hereto shall execute such
documents and agreements as the Agent may reasonably request and (b) the Borrowers shall make
appropriate arrangements so that each new Lender, and any existing Lender increasing its
Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender’s
Commitment within 2 Business Days of the effectiveness of the applicable increase in the aggregate
amount of Commitments. Any increase in the Facility Amount pursuant to this Section 2.15 shall be
subject to the condition that the Borrowers shall have paid to the Agent, such fees as shall be due
to Agent and/or the Lenders at such time under the Fee Letter. The provisions of this Section 2.15
shall not constitute a “commitment” to lend, and the Commitments of the Lenders shall not be
increased until satisfaction of the provisions of this Section 2.15 and actual increase of the
Commitments as provided herein. The date an increase of the Commitments becomes effective pursuant
to this Section 2.15 is referred to herein as an “Increase Effective Date.”



Section 2.16. Joint and Several Liability.




     (a) The obligations of the Borrowers hereunder and under the other Loan Documents to which any
Borrower is a party shall be joint and several, and accordingly, each Borrower confirms that it is
liable for the full amount of the “Obligations,” regardless of whether incurred by such Borrower or
any other Borrower, and all of the other obligations and liabilities of the other Borrowers
hereunder and under the other Loan Documents.



     (b) Each of the Borrowers represents and warrants to the Agent and the Lenders that the
Borrowers, though separate legal entities, are mutually dependent on each other in the conduct of
their respective businesses as an integrated operation and have determined it to be in their mutual
best interests to obtain financing from the Lenders through their collective efforts.



     (c) None of the Lenders or the Agent shall be obligated or required before enforcing any Loan
Document against a Borrower: (a) to pursue any right or remedy any of them may have against any
other Borrower, any Guarantor or any other Person or commence any suit or other proceeding against
any other Borrower, any Guarantor or any other Person in any court or other tribunal; (b) to make
any claim in a liquidation or bankruptcy of any other Borrower, any Guarantor or any other Person;
or (c) to make demand of any other Borrower, any Guarantor or



37









 







any other Person or to enforce or seek to enforce or realize upon any collateral security held
by the Lenders or the Agent which may secure any of the Obligations.



     (d) The Lenders and the Agent may, at any time and from time to time, without the consent of,
or notice to, a Borrower, and without discharging such Borrower from its obligations hereunder,
take any of the following actions: (i)  release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations and in which any other Borrower has rights; (ii) release
any other Borrower, any Guarantor or any other Person liable in any manner for the payment or
collection of the Obligations; (iii) exercise, or refrain from exercising, any rights against any
other Borrower, any Guarantor or any other Person; and (iv) apply any sum, by whomsoever paid or
however realized, to the Obligations in such order as the Lenders shall elect.



     (e) It is the intent of each Borrower, the Agent and the Lenders that in any proceeding of the
types described in Sections 10.1(f) or 10.1(g), a Borrower’s maximum obligation hereunder shall
equal, but not exceed, the maximum amount which would not otherwise cause the obligations of such
Borrower hereunder (or any other obligations of such Borrower to the Agent and the Lenders) to be
avoidable or unenforceable against such Borrower in such proceeding as a result of Applicable Law,
including without limitation, (i) Section 548 of the Bankruptcy Code and (ii) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws under which the possible
avoidance or unenforceability of the obligations of such Borrower hereunder (or any other
obligations of such Borrower to the Agent and the Lenders) shall be determined in any such
proceeding are referred to as the “Avoidance Provisions”. Accordingly, to the extent that the
obligations of any Borrower hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Obligations for which such Borrower shall be liable hereunder shall be
reduced to that amount which, as of the time any of the Obligations are deemed to have been
incurred under the Avoidance Provisions, would not cause the obligations of such Borrower hereunder
(or any other obligations of such Borrower to the Agent and the Lenders), to be subject to
avoidance under the Avoidance Provisions. This subsection is intended solely to preserve the
rights of the Agent and the Lenders hereunder to the maximum extent that would not cause the
obligations of any Borrower hereunder to be subject to avoidance under the Avoidance Provisions,
and no Borrower or any other Person shall have any right or claim under this Section as against the
Agent and the Lenders that would not otherwise be available to such Person under the Avoidance
Provisions.



     (f) Each Borrower assumes all responsibility for being and keeping itself informed of the
financial condition of the other Borrowers and the Guarantors, and of all other circumstances
bearing upon the risk of nonpayment of any of the Obligations and the nature, scope and extent of
the risks that such Borrower assumes and incurs hereunder, and agrees that none of the Agent or the
Lenders shall have any duty whatsoever to advise any Borrower of information regarding such
circumstances or risks.



Section 2.17. Borrower Representative.




     Each of the Borrowers hereby appoints the Borrower Representative to act as its exclusive
agent for all purposes under the Loan Documents (including, without limitation, with respect to all
matters related to the borrowing and repayment of Loans as described in Articles II



38









 







and III). Each of the Borrowers acknowledges and agrees that (a) the Borrower Representative
may execute such documents on behalf of any of the Borrowers as the Borrower Representative deems
appropriate in its sole discretion and each Borrower shall be bound by and obligated by all of the
terms of any such document executed by the Borrower Representative on its behalf, (b) any notice or
other communication delivered by the Agent or any Lender hereunder to the Borrower Representative
shall be deemed to have been delivered to each of the Borrowers and (c) the Agent and each of the
Lenders shall accept (and shall be permitted to rely on) any document or agreement executed by the
Borrower Representative on behalf of the Borrowers (or any of them). The Borrowers must act
through the Borrower Representative for all purposes under this Agreement and the other Loan
Documents. Notwithstanding anything contained herein to the contrary, to the extent any provision
in this Agreement requires any Borrower to interact in any manner with the Agent or the Lenders,
such Borrower shall do so through the Borrower Representative.



Section 2.18. Security Interests in Collateral.




     To secure their Obligations under this Agreement and the other Loan Documents, the Borrowers
and each other Loan Party grant to the Agent, for its benefit and the benefit of the other Lenders,
a first-priority security interest in all of the Collateral pursuant to the Pledge Agreement
together with such other security documents as may now or hereafter be executed to secure the
Obligations. Without limiting the foregoing, at the option of the Agent, any applicable Property
Subsidiary shall grant to the Agent, on behalf of the Lenders, a mortgage or deed of trust interest
in and to said Borrowing Base Asset to secure the Obligations; provided, however, in the event of a
Permitted Financing with respect to such Borrowing Base Asset, or other refinance with the consent
of the Agent of the Borrowing Base Asset, the Agent shall release said mortgage or deed of trust to
the refinanced loan subject to the payment of the Mandatory Principal Prepayment relating thereto.



ARTICLE III. - PAYMENTS, FEES AND OTHER GENERAL PROVISIONS




Section 3.1. Payments.




     Except to the extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrowers under this Agreement or any other Loan Document shall be made
in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the
Agent at its Principal Office, not later than 2:00 p.m. on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed to have been made
on the next succeeding Business Day). Subject to Section 10.4, the Borrowers may, at the time of
making each payment under this Agreement or any Note, specify to the Agent the amounts payable by
the Borrowers hereunder to which such payment is to be applied. Each payment received by the Agent
for the account of a Lender under this Agreement or any Note shall be paid to such Lender at the
applicable Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. If the
Agent fails to pay such amount to a Lender as provided in the previous sentence, the Agent shall
pay interest on such amount until paid at a rate per annum equal to the Federal Funds Effective
Rate from time to time in effect. If the due date of any payment under this Agreement or any other
Loan Document would otherwise fall on a



39









 







day which is not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall be payable for the period of such extension.



Section 3.2. Pro Rata Treatment.




     Except to the extent otherwise provided herein: (a) each borrowing from the Lenders under
Section 2.1(a), 2.2(a) and 2.3(a) shall be made by the Lenders, and each termination or reduction
of the amount of the Commitments under Section 2.11 shall be applied to the respective Commitments
of the Lenders, pro rata according to the amounts of their respective Commitments under the subject
Facility; (b) each payment or prepayment of principal of Loans by the Borrowers shall be made for
the account of the Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans held by them, provided that if immediately prior to giving effect to any such payment in
respect of any Loans the outstanding principal amount of the Loans shall not be held by the Lenders
pro rata in accordance with their respective Commitments in effect at the time such Loans were
made, then such payment shall be applied to the Loans in such manner as shall result, as nearly as
is practicable, in the outstanding principal amount of the Loans being held by the Lenders pro rata
in accordance with their respective Commitments; (c) each payment of interest on Loans by the
Borrowers shall be made for the account of the Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders; (d) the making, Conversion
and Continuation of Loans of a particular Type (other than Conversions provided for by Section 4.6)
shall be made pro rata among the Lenders according to the amounts of their respective Commitments
(in the case of making of Loans) or their respective Loans (in the case of Conversions and
Continuations of Loans) and the then current Interest Period for each Lender’s portion of each Loan
of such Type shall be coterminous; and (e) the Lenders’ participation in, and payment obligations
in respect of, Letters of Credit under Section 2.3, shall be pro rata in accordance with their
respective Commitments.



Section 3.3. Sharing of Payments, Etc.




     If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to
the Borrowers under this Agreement, or shall obtain payment on any other Obligation owing by the
Borrowers or any other Loan Party through the exercise of any right of set-off, banker’s lien or
counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrowers to a Lender not in accordance with the terms of this Agreement
and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2 or
Section 10.4, as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct interests in) the
Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance with
Section 3.2 or Section 10.4, as applicable. To such end, all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. The Borrowers agree that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to such other Lenders may
exercise all rights of set-off, banker’s lien, counterclaim or similar rights with



40









 







respect to such participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation of the Borrowers.



Section 3.4. Several Obligations.




     No Lender shall be responsible for the failure of any other Lender to make a Loan or to
perform any other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be made or performed by
it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform
any other obligation to be made or performed by such other Lender.



Section 3.5. Minimum Amounts.




     (a) Borrowings and Conversions. Except as otherwise provided in Section 2.3(e), each
borrowing of Base Rate Loans shall be in an aggregate minimum amount of $1,000,000.00 and integral
multiples of $100,000.00 in excess thereof. Each borrowing of, Conversion to and Continuation of
LIBOR Loans shall be in an aggregate minimum amount of $1,000,000.00 and integral multiples of
$100,000.00 in excess of that amount.



     (b) Prepayments. Each voluntary prepayment of Loans shall be in an aggregate minimum
amount of $1,000,000.00 and integral multiples of $100,000.00 in excess thereof (or, if less, the
aggregate principal amount of Loans then outstanding).



     (c) Reductions of Commitments. Each reduction of the Commitments under Section 2.11
shall be in minimum decrements of $10,000,000.00.



     (d) Letters of Credit. The initial Stated Amount of each Letter of Credit shall be at
least $50,000.00.



Section 3.6. Fees.




     (a) Unused Facility Fee. During the period from the Effective Date to but excluding
the Termination Date, the Borrowers agree to pay to the Agent for the account of the Revolving
Lenders an unused facility fee with respect to the difference between Revolving Facility Amount and
the Revolving Loan Exposure (the “Unused Amount”). Such fee shall be computed by multiplying the
Unused Amount by the rate of one-quarter of one percent (0.25%) per annum, calculated daily (based
on the number of days elapsed in a 360-day year). Such fee shall be payable in arrears the last
day of March, June, September and December in each year. Any such accrued and unpaid fee shall
also be payable on the Termination Date or any earlier date of termination of the Commitments or
reduction of the Commitments to zero.



     (b) Letter of Credit Fees. The Borrowers agree to pay to the Agent for the account of
each Revolving Lender a letter of credit fee at a rate per annum equal to the Applicable Margin for
LIBOR Loans times the daily average Stated Amount of each Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (x) through and including the date such
Letter of Credit expires or is terminated or (y) to but excluding the date such Letter of



41









 







Credit is drawn in full and is not subject to reinstatement, as the case may be. The fees
provided for in the immediately preceding sentence shall be nonrefundable and payable in arrears on
(i) the last day of March, June, September and December in each year, (ii) the Termination Date,
(iii) the date the Commitments are terminated or reduced to zero and (iv) thereafter from time to
time on demand of the Agent. In addition, the Borrowers shall pay to the Agent for its own account
and not the account of any Lender, an issuance fee (with such issuance fee being paid to Wachovia
Bank, National Association with respect to any Existing LC to the extent Wachovia shall remain the
issuer thereof) in respect of each Letter of Credit equal to the greater of (i) $500.00 or (ii) one
and one-half of a tenth of a percent (0.15%) per annum on the initial Stated Amount of such Letter
of Credit (A) for the period from and including the date of issuance of such Letter of Credit
through and including the expiration date of such Letter of Credit and (B) if the expiration date
of any Letter of Credit is extended (whether as a result of the operation of an automatic extension
clause or otherwise), for the period from but excluding the previous expiration date to and
including the extended expiration date. The fees provided for in the immediately preceding
sentence shall be nonrefundable and payable upon issuance (or in the case of an extension of the
expiration date, on the previous expiration date). The Borrowers shall pay directly to the Agent
from time to time on demand all commissions, charges, costs and expenses in the amounts customarily
charged by the Agent from time to time in like circumstances with respect to the issuance of each
Letter of Credit, drawings, amendments and other transactions relating thereto.



     (c) Extension Fee. If the Borrowers exercise their right to extend the Termination
Date in accordance with Section 2.12, the Borrowers agree to pay to the Agent for the pro rata
account of each Lender (based on each Lender’s respective Term Loan Commitment and Revolving Loan
Commitment) a fee equal to one-quarter of one percent (0.25%) of the amount of the then outstanding
Term Facility Loans and the Revolving Facility Amount (whether or not utilized) at the time of such
extension. Such fee shall be due and payable in full on the date the Agent receives the Extension
Request pursuant to such Section.



     (d) Administrative and Other Fees. The Borrowers agree to pay the administrative and
other fees of the Agent pursuant to the Fee Letter and as may otherwise be agreed to in writing by
the Borrowers and the Agent from time to time.



Section 3.7. Computations.




     Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any
other Obligations due hereunder shall be computed on the basis of a year of 365 or 366 days, as
applicable, and the actual number of days elapsed; provided, however, any accrued interest on any
LIBOR Rate Loan shall be computed on the basis of a year of 360 days and the actual number of days
elapsed.



Section 3.8. Usury.




     In no event shall the amount of interest due or payable on the Loans or other Obligations
exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by
any Borrower or any other Loan Party or received by any Lender, then such excess sum shall be
credited as a payment of principal, unless the Borrowers shall notify the respective



42









 







Lender in writing that the Borrowers elect to have such excess sum returned to them forthwith.
It is the express intent of the parties hereto that the Borrowers not pay and the Lenders not
receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrowers under Applicable Law.



Section 3.9. Agreement Regarding Interest and Charges.




     The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrowers
for the use of money in connection with this Agreement is and shall be the interest specifically
described in Sections Section 2.4(a)(i) and (ii). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees, facility fees, closing
fees, letter of credit fees, underwriting fees, default charges, late charges, funding or
“breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and
expenses paid by the Agent or any Lender to third parties or for damages incurred by the Agent or
any Lender, in each case in connection with the transactions contemplated by this Agreement and the
other Loan Documents, are charges made to compensate the Agent or any such Lender for underwriting
or administrative services and costs or losses performed or incurred, and to be performed or
incurred, by the Agent and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money. All charges other than charges for the
use of money shall be fully earned and nonrefundable when due.



Section 3.10. Statements of Account.




     The Agent will account to the Borrowers monthly with a statement of Loans, Letters of Credit,
accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan
Documents, and such account rendered by the Agent shall be deemed conclusive upon the Borrowers
absent manifest error. The failure of the Agent to deliver such a statement of accounts shall not
relieve or discharge the Borrowers from any of their obligations hereunder.



Section 3.11. Defaulting Lenders.




     (a) Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or
refuse to perform any of its obligations under this Agreement or any other Loan Document to which
it is a party within the time period specified for performance of such obligation or, if no time
period is specified, if such failure or refusal continues for a period of two Business Days after
notice from the Agent, then, in addition to the rights and remedies that may be available to the
Agent or the Borrowers under this Agreement or Applicable Law, such Defaulting Lender’s right to
participate in the administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or to direct any
action or inaction of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent of any amount required
to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Agent or the Borrowers may have under the
immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest
from such Defaulting Lender on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal Funds Effective



43









 







Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any
related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or
any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a
court of competent jurisdiction to recover the defaulted amount and any related interest. Any
amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase
price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon such
Defaulting Lender’s curing of its default.



     (b) Purchase or Cancellation of Defaulting Lender’s Commitment. Any Lender who is not
a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire all or a
portion of a Defaulting Lender’s Commitment. Any Lender desiring to exercise such right shall give
written notice thereof to the Agent and the Borrowers no sooner than 2 Business Days and not later
than 5 Business Days after such Defaulting Lender became a Defaulting Lender. If more than one
Lender exercises such right, each such Lender shall have the right to acquire an amount of such
Defaulting Lender’s Commitment in proportion to the Commitments of the other Lenders exercising
such right. If after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrowers may, by giving written notice thereof to
the Agent, such Defaulting Lender and the other Lenders, either (i) demand that such Defaulting
Lender assign its Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.5(d) for the purchase price provided for below or (ii) terminate the
Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other Loan Documents. No
party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. Upon any such purchase or assignment, the Defaulting Lender’s
interest in the Loans and its rights hereunder (but not its liability in respect thereof or under
the Loan Documents or this Agreement to the extent the same relate to the period prior to the
effective date of the purchase except to the extent assigned pursuant to such purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall promptly execute all documents
reasonably requested to surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and, notwithstanding Section 12.5(d),
shall pay to the Agent an assignment fee in the amount of $7,000.00. The purchase price for the
Commitment of a Defaulting Lender shall be equal to the amount of the principal balance of the
Loans outstanding and owed by the Borrowers to the Defaulting Lender. Prior to payment of such
purchase price to a Defaulting Lender, the Agent shall apply against such purchase price any
amounts retained by the Agent pursuant to the last sentence of the immediately preceding
subsection (a). Notwithstanding the foregoing, the Defaulting Lender shall be entitled to receive
amounts owed to it by the Borrowers under the Loan Documents which accrued prior to the date of the
default by the Defaulting Lender, to the extent the same are received by the Agent from or on
behalf of the Borrowers. There shall be no recourse against any Lender or the Agent for the
payment of such sums except to the extent of the receipt of payments from any other party or in
respect of the Loans.



44









 





Section 3.12. Taxes.




     (a) Taxes Generally. All payments by the Borrowers of principal of, and interest on,
the Loans and all other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes imposed on or measured by the assets, net income,
receipts or branch profits of any Lender or the Agent, (iii) any taxes (other than withholding
taxes) with respect to the Agent or a Lender that would not be imposed but for a connection between
the Agent or such Lender and the jurisdiction imposing such taxes (other than a connection arising
solely by virtue of the activities of the Agent or such Lender pursuant to or in respect of this
Agreement or any other Loan Document), and (iv) any taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges to the extent imposed as a result of the failure of the
Agent or a Lender, as applicable, to provide and keep current (to the extent legally able) any
certificates, documents or other evidence required to qualify for an exemption from, or reduced
rate of, any such taxes fees, duties, levies, imposts, charges, deductions, withholdings or other
charges or required by the immediately following subsection (c) to be furnished by the Agent or
such Lender, as applicable (such non-excluded items being collectively called “Taxes”). If any
withholding or deduction from any payment to be made by the Borrowers hereunder is required in
respect of any Taxes pursuant to any Applicable Law, then the Borrowers will:




     (i) pay directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;




     (ii) promptly forward to the Agent an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such Governmental Authority; and




     (iii) pay to the Agent for its account or the account of the applicable Lender, as the
case may be, such additional amount or amounts as is necessary to ensure that the net amount
actually received by the Agent or such Lender will equal the full amount that the Agent or
such Lender would have received had no such withholding or deduction been required.



     (b) Tax Indemnification. If the Borrowers fail to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Agent, for its account or the account
of the respective Lender, as the case may be, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Agent and the Lenders for any incremental Taxes,
interest or penalties that may become payable by the Agent or any Lender as a result of any such
failure. For purposes of this Section, a distribution hereunder by the Agent or any Lender to or
for the account of any Lender shall be deemed a payment by the Borrowers.



     (c) Tax Forms. Prior to the date that any Foreign Lender becomes a party hereto, such
Foreign Lender shall deliver to the Borrowers and the Agent such certificates, documents or other
evidence, as required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto
(including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate
successor forms), properly completed, currently effective and duly



45









 







executed by such Foreign Lender establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax and (ii) not subject to United
States Federal withholding tax imposed under the Internal Revenue Code. Each such Foreign Lender
shall, to the extent it may lawfully do so, (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or become obsolete and
after the occurrence of any event requiring a change in the most recent form delivered to the
Borrowers or the Agent and (y) obtain such extensions of the time for filing, and renew such forms
and certifications thereof, as may be reasonably requested by the Borrowers or the Agent. The
Borrowers shall not be required to pay any amount pursuant to the last sentence of subsection (a)
above to any Foreign Lender or the Agent, if it is organized under the laws of a jurisdiction
outside of the United States of America, if such Foreign Lender or the Agent, as applicable, fails
to comply with the requirements of this subsection. If any such Foreign Lender, to the extent it
may lawfully do so, fails to deliver the above forms or other documentation, then the Agent may
withhold from any payments to be made to such Foreign Lender under any of the Loan Documents such
amounts as are required by the Internal Revenue Code. If any Governmental Authority asserts that
the Agent did not properly withhold or backup withhold, as the case may be, any tax or other amount
from payments made to or for the account of any Lender, such Lender shall indemnify the Agent
therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, and costs and expenses (including all reasonable
fees and disbursements of any law firm or other external counsel and the allocated cost of internal
legal services and all disbursements of internal counsel) of the Agent. The obligation of the
Lenders under this Section shall survive the termination of the Commitments, repayment of all
Obligations and the resignation or replacement of the Agent.



ARTICLE IV. - YIELD PROTECTION, ETC.




Section 4.1. Additional Costs; Capital Adequacy.




     (a) Additional Costs. The Borrowers shall promptly pay to the Agent for the account
of each affected Lender from time to time such amounts as such Lender may reasonably determine to
be necessary to compensate such Lender for any costs incurred by such Lender that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation to make any LIBOR
Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any
of the other Loan Documents in respect of any of such Loans or such obligation or the maintenance
by such Lender of capital in respect of its Loans or its Commitment (such increases in costs and
reductions in amounts receivable being herein called “Additional Costs”), to the extent resulting
from any Regulatory Change that: (i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or
its Commitment (other than taxes, fees, duties, levies, imposts, charges, deductions, withholdings
or other charges which are excluded from the definition of Taxes pursuant to the first sentence of
Section 3.12(a)); or (ii) imposes or modifies any reserve, special deposit or similar requirements
(other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve
requirement to the extent utilized in the determination of Adjusted LIBOR for such Loan) relating
to any extensions of credit or other assets of, or any deposits with or other liabilities of, such
Lender, or any commitment of such Lender (including, without limitation, the Commitment of such
Lender



46









 







hereunder); or (iii) has or would have the effect of reducing the rate of return on capital of
such Lender to a level below that which such Lender could have achieved but for such Regulatory
Change (taking into consideration such Lender’s policies with respect to capital adequacy).



     (b) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions
of the immediately preceding subsection (a), if, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender that includes deposits by
reference to which the interest rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender that includes LIBOR Loans or
(ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that
it may hold, then, if such Lender so elects by notice to the Borrowers (with a copy to the Agent),
the obligation of such Lender to make or Continue, or to Convert any other Type of Loans into,
LIBOR Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 4.6 shall apply).



     (c) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrowers under the preceding subsections of this Section (but without
duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed,
modified or deemed applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Agent of issuing (or any Lender of purchasing participations
in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by the Agent or any Lender hereunder in respect of any
Letter of Credit, then, upon demand by the Agent or such Lender, the Borrowers shall pay promptly,
and in any event within 3 Business Days of demand, to the Agent for its account or the account of
such Lender, as applicable, from time to time as specified by the Agent or a Lender, such
additional amounts as shall be sufficient to compensate the Agent or such Lender for such increased
costs or reductions in amount.



     (d) Notification and Determination of Additional Costs. Each of the Agent and each
Lender agrees to notify the Borrowers of any event occurring after the Agreement Date entitling the
Agent or such Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Agent or any Lender to give such
notice shall not release the Borrowers from any of their obligations hereunder (and in the case of
a Lender, to the Agent). The Agent or such Lender agrees to furnish to the Borrowers (and in the
case of a Lender, to the Agent) a certificate setting forth in reasonable detail the basis and
amount of each request by the Agent or such Lender for compensation under this Section. Absent
manifest error, determinations by the Agent or any Lender of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on a reasonable basis and in good
faith.



47









 





Section 4.2. Suspension of LIBOR Loans.




     Anything herein to the contrary notwithstanding, if, on or prior to the determination of
Adjusted LIBOR for any Interest Period:




     (a) the Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable means do not
exist for ascertaining Adjusted LIBOR for such Interest Period, or




     (b) the Agent reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lenders of making or
maintaining LIBOR Loans for such Interest Period;


then the Agent shall give the Borrowers and each Lender prompt notice thereof and, so long as such
condition remains in effect, the Lenders shall be under no obligation to, and shall not, make
additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrowers
shall, on the last day of each current Interest Period for each outstanding LIBOR Loan, either
repay such Loan or Convert such Loan into a Base Rate Loan.




Section 4.3. Illegality.




     Notwithstanding any other provision of this Agreement, if any Lender shall reasonably
determine (which determination shall be conclusive and binding) that it has become unlawful for
such Lender to honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender
shall promptly notify the Borrowers thereof (with a copy to the Agent) and such Lender’s obligation
to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended
until such time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 4.6 shall be applicable).



Section 4.4. Compensation.




     The Borrowers shall pay to the Agent for the account of each Lender, upon the request of such
Lender through the Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense that such Lender reasonably
determines is directly attributable to:




     (a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or
Conversion of a LIBOR Loan, made by such Lender for any reason (including, without
limitation, acceleration) on a date other than the last day of the Interest Period for such
Loan; or




     (b) any failure by the Borrowers for any reason (including, without limitation, the
failure of any of the applicable conditions precedent specified in Article V to be
satisfied) to borrow a LIBOR Loan from such Lender on the requested date for such borrowing,
or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested
date of such Conversion or Continuation.



48









 




Upon the Borrowers’ request, any Lender requesting compensation under this Section shall provide
the Borrowers with a statement setting forth in reasonable detail the basis for requesting such
compensation and the method for determining the amount thereof. Absent manifest error,
determinations by any Lender in any such statement shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.




Section 4.5. Affected Lenders.




     If (a) a Lender requests compensation pursuant to Section 3.12 or 4.1, and the Requisite
Lenders are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to
Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1(b) or 4.3 but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or Event of Default,
the Borrowers may demand that such Lender (the “Affected Lender”), and upon such demand the
Affected Lender shall promptly, assign its Commitment to an Eligible Assignee subject to and in
accordance with the provisions of Section 12.5(d) for a purchase price equal to the aggregate
principal balance of all Loans then owing to the Affected Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to the Affected Lender, or any other amount as
may be mutually agreed upon by such Affected Lender and Eligible Assignee. Each of the Agent and
the Affected Lender shall reasonably cooperate in effectuating the replacement of such Affected
Lender under this Section, but at no time shall the Agent, such Affected Lender nor any other
Lender be obligated in any way whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee. The exercise by the Borrowers of their rights under this Section shall be at
the Borrowers’ sole cost and expense and at no cost or expense to the Agent, the Affected Lender or
any of the other Lenders. The terms of this Section shall not in any way limit the Borrowers’
obligation to pay to any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12 or 4.1 with respect to periods up to the date of replacement.



Section 4.6. Treatment of Affected Loans.




     If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate
Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1(b) or 4.3, then such Lender’s
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by
Section 4.1(b) or 4.3, on such earlier date as such Lender may specify to the Borrowers with a copy
to the Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1 or 4.3 that gave rise to such Conversion no longer exist:




     (a) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans
shall be applied instead to its Base Rate Loans; and




     (b) all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans
shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such
Lender that would otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans.



49









 




If such Lender gives notice to the Borrowers (with a copy to the Agent) that the circumstances
specified in Section 4.1 or 4.3 that gave rise to the Conversion of such Lender’s LIBOR Loans
pursuant to this Section no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding,
then such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such
Lender are held pro rata (as to principal amounts, Types and Interest Periods) in accordance with
their respective Commitments.




Section 4.7. Change of Lending Office.




     Each Lender agrees that it will use reasonable efforts to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or circumstances described in
Section 3.12, 4.1 or 4.3. to reduce the liability of the Borrowers or avoid the results provided
thereunder, so long as such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation to designate a
Lending Office located in the United States of America.



Section 4.8. Assumptions Concerning Funding of LIBOR Loans.




     Calculation of all amounts payable to a Lender under this Article IV shall be made as though
such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant
market bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount
of the LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided,
however, that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable under this Article IV.



ARTICLE V. - CONDITIONS PRECEDENT




Section 5.1. Initial Conditions Precedent.




     The obligation of the Lenders to effect or permit the occurrence of the first Credit Event
hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the
following conditions precedent:



     (a) The Agent shall have received each of the following, in form and substance satisfactory to
the Agent:




     (i) Counterparts of this Agreement executed by each of the parties hereto;




     (ii) Notes executed by the Borrowers, payable to each Lender and complying with the
applicable provisions of Section 2.10;




     (iii) The Guaranty executed by each Guarantor existing as of the Effective Date;



50









 






     (iv) The Pledge Agreement executed by the Parties thereto;




     (v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders,
addressing the matters set forth in Exhibit F;




     (vi) The articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of the Borrowers and each
other Loan Party certified as of a recent date by the Secretary of State of the state of
formation of such Loan Party;




     (vii) A certificate of good standing or certificate of similar meaning with respect to
each Loan Party issued as of a recent date by the Secretary of State of the state of
formation of each such Loan Party and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which such Loan Party is required to be so
qualified and where the failure to be so qualified could reasonably be expected to have a
Material Adverse Effect;




     (viii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party with respect to each of
the officers of such Loan Party authorized to execute and deliver the Loan Documents to
which such Loan Party is a party, and in the case of the Borrowers, and the officers of the
Borrower Representative then authorized to deliver Notices of Borrowing, Notices of
Continuation, Notices of Conversion and to request the issuance of Letters of Credit;




     (ix) Copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party of (i) the by-laws of such Loan Party, if a
corporation, the operating agreement of such Loan Party, if a limited liability company, the
partnership agreement of such Loan Party, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and (ii) all corporate,
partnership, member or other necessary action taken by such Loan Party to authorize the
execution, delivery and performance of the Loan Documents to which it is a party;




     (x) The Fees then due and payable under Section 3.6, and any other Fees payable to the
Agent, the Titled Agents and the Lenders on or prior to the Effective Date;




     (xi)
A Compliance Certificate calculated as of      
        
           , 2009 (giving pro forma
effect to the financing contemplated by this Agreement and the use of the proceeds of the
Loans to be funded on the Effective Date);




     (xii) A letter from each applicable agent under the Existing Credit Agreement providing
information regarding the payment in full of amounts outstanding thereunder and providing
for the treatment thereof;




     (xiii) A Borrowing Base Certificate dated as of the Effective Date;



51









 






     (xiv) Such due diligence (including lien searches and/or title reports) with respect to
the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;




     (xv) all documentation, recordings, filings and other actions in the judgment of the
Agent required to collaterally assign the Collateral to the Agent for the benefit of the
Lenders and to perfect the Agent’s first priority Lien therein for the benefit the Lenders
shall have been completed; and




     (xvi) Such other documents, agreements and instruments as the Agent on behalf of the
Lenders may reasonably request; and



     (b) In the good faith judgment of the Agent and the Lenders:




     (i) There shall not have occurred or become known to the Agent or any of the Lenders
any event, condition, situation or status since the date of the information contained in the
financial and business projections, budgets, pro forma data and forecasts concerning the
Trust and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement
Date that has had or could reasonably be expected to result in a Material Adverse Effect;




     (ii) No litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be expected to (1)
result in a Material Adverse Effect or (2) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of the Borrowers or
any other Loan Party to fulfill its obligations under the Loan Documents to which it is a
party;




     (iii) The Trust and its Subsidiaries shall have received all approvals, consents and
waivers, and shall have made or given all necessary filings and notices, as shall be
required to consummate the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (1) any Applicable Law or (2) any agreement,
document or instrument to which any Borrower or any other Loan Party is a party or by which
any of them or their respective properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of which would not reasonably be
likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect the ability of any
Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to
which it is a party; and




     (iv) There shall not have occurred or exist any other material disruption of financial
or capital markets that could reasonably be expected to materially and adversely affect the
transactions contemplated by the Loan Documents.



Section 5.2. Conditions Precedent to All Loans and Letters of Credit.




     The obligations of the Lenders to make any Loans and of the Agent to issue Letters of Credit
are all subject to the further condition precedent that: (a) no Default or Event of Default



52









 







shall exist as of the date of the making of such Loan or date of issuance of such Letter of
Credit or would exist immediately after giving effect thereto; and (b) the representations and
warranties made or deemed made by the Borrowers and each other Loan Party in the Loan Documents to
which any of them is a party, shall be true and correct in all material respects on and as of the
date of the making of such Loan or date of issuance of such Letter of Credit with the same force
and effect as if made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Each Credit Event shall constitute a certification by the Borrowers to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrowers otherwise notify the Agent prior to the date of such Credit Event, as of the
date of the occurrence of such Credit Event). In addition, if such Credit Event is the making of a
Loan or the issuance of a Letter of Credit, the Borrowers shall be deemed to have represented to
the Agent and the Lenders at the time such Loan is made or Letter of Credit issued that all
conditions to the occurrence of such Credit Event contained in this Article V have been satisfied.



ARTICLE VI. - REPRESENTATIONS AND WARRANTIES




Section 6.1. Representations and Warranties.




     In order to induce the Agent and each Lender to enter into this Agreement and to make Loans
and issue Letters of Credit, the Borrowers represents and warrants to the Agent and each Lender as
follows:



     (a) Organization; Power; Qualification. Each of the Borrowers, the other Loan Parties
and the other Subsidiaries is a corporation, partnership or other legal entity, duly organized or
formed, validly existing and in good standing under the jurisdiction of its incorporation or
formation, has the power and authority to own or lease its respective properties and to carry on
its respective business as now being conducted and is duly qualified and is in good standing as a
foreign corporation, partnership or other legal entity, and authorized to do business, in each
jurisdiction in which the character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or authorized could
reasonably be expected to have, in each instance, a Material Adverse Effect.



     (b) Ownership Structure. As of the Agreement Date, Part I of Schedule 6.1.(b) is a
complete and correct list of all Subsidiaries of the Trust setting forth for each such Subsidiary,
(i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding any Equity
Interests in such Subsidiary, (iii) the nature of the Equity Interests held by each such Person,
(iv) the percentage of ownership of such Subsidiary represented by such Equity Interests and
(v) whether such Subsidiary is a Guarantor or Property Subsidiary. Except as disclosed in such
Schedule, as of the Agreement Date (i) each of the Trust and its Subsidiaries owns, free and clear
of all Liens (other than Permitted Liens), and has the unencumbered right to vote, all outstanding
Equity Interests in each Property Subsidiary shown to be held by it on such Schedule, (ii) all of
the issued and outstanding capital stock of each such Person organized as a corporation is validly
issued, fully paid and nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including, without



53









 







limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities convertible into, any additional shares of capital stock of
any class, or partnership or other ownership interests of any type in, any such Person. As of the
Agreement Date Part II of Schedule 6.1.(b) correctly sets forth all Unconsolidated Affiliates of
the Trust, including the correct legal name of such Person, the type of legal entity which each
such Person is, and all Equity Interests in such Person held directly or indirectly by the Trust.



     (c) Authorization of Agreement, Etc. Each Borrower has the right and power, and has
taken all necessary action to authorize it, to borrow and obtain other extensions of credit
hereunder. The Borrowers and each other Loan Party have the right and power, and has taken all
necessary action to authorize it, to execute, deliver and perform each of the Loan Documents to
which it is a party in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which any Borrower or any other Loan Party
is a party have been duly executed and delivered by the duly authorized officers of such Person and
each is a legal, valid and binding obligation of such Person enforceable against such Person in
accordance with its respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations (other than the payment of principal)
contained herein or therein and as may be limited by equitable principles generally.



     (d) Compliance of Loan Documents with Laws, Etc. The execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which any Borrower or any
other Loan Party is a party in accordance with their respective terms and the borrowings and other
extensions of credit hereunder do not and will not, by the passage of time, the giving of notice,
or both: (i) require any Governmental Approval or violate any Applicable Law (including all
Environmental Laws) relating to any Borrower or any other Loan Party; (ii) conflict with, result in
a breach of or constitute a default under the organizational documents of any Borrower or any other
Loan Party, or, with the exception of the Existing Loan Documents, any indenture, agreement or
other instrument to which any Borrower or any other Loan Party is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter acquired by any Borrower or
any other Loan Party, other than Liens created pursuant to the Loan Documents.



     (e) Compliance with Law; Governmental Approvals. Each of the Borrowers, each other
Loan Party and each other Subsidiary is in compliance with each Governmental Approval applicable to
it and in compliance with all other Applicable Laws (including without limitation, Environmental
Laws) relating to a Borrower, a Subsidiary or such other Loan Party except for noncompliances
which, and Governmental Approvals the failure to possess which, could not, individually or in the
aggregate, reasonably be expected to cause a Default or Event of Default or have a Material Adverse
Effect.



     (f) Title to Properties; Liens. As of the Agreement Date, Schedule 6.1.(f) is a
complete and correct listing of all of the real property owned or leased by each Borrower, each
other Loan Party and each other Subsidiary. Each such Person has good, marketable and legal title
to, or a valid leasehold interest in, its respective assets. As of the Agreement Date, there are



54









 







no Liens against any assets of any Borrower, any other Loan Party or any other Subsidiary
except for Permitted Liens.



     (g) Existing Indebtedness. Schedule 6.1.(g) is, as of the Agreement Date, a complete
and correct listing of all Indebtedness of the Trust and its Subsidiaries, including without
limitation, Guarantees of the Trust and its Subsidiaries, and indicating whether such Indebtedness
is Secured Indebtedness.



     (h) Material Contracts. Schedule 6.1.(h) is, as of the Agreement Date, a true,
correct and complete listing of all Material Contracts. No event or condition exists which with
the giving of notice, the lapse of time, or both, would permit any party to any such Material
Contract to terminate such Material Contract.



     (i) Litigation. Except as set forth on Schedule 6.1.(i), there are no actions, suits,
investigations or proceedings pending (nor, to the knowledge of the Borrowers, are there any
actions, suits or proceedings threatened) against or in any other way relating adversely to or
affecting any Borrower, any other Loan Party or any other Subsidiary or any of their respective
property in any court or before any arbitrator of any kind or before or by any other Governmental
Authority which could reasonably be expected to have a Material Adverse Effect. There are no
strikes, slow downs, work stoppages or walkouts or other labor disputes in progress or threatened
relating to any Borrower, any other Loan Party or any other Subsidiary which could reasonably be
expected to have a Material Adverse Effect.



     (j) Taxes. All federal, state and other tax returns of each Borrower, each other Loan
Party and each other Subsidiary required by Applicable Law to be filed have been duly filed, and
all federal, state and other taxes, assessments and other governmental charges or levies upon each
Borrower, each other Loan Party and each other Subsidiary and their respective properties, income,
profits and assets which are due and payable have been paid, except any such nonpayment which is at
the time permitted under Section 7.6 and except in each case for noncompliance with respect to
filing or payment which could not reasonably be expected to have a Material Adverse Effect. Except
as set forth on Schedule 6.1(j) as of the Agreement Date, none of the United States income tax
returns of any Borrower, any other Loan Party or any other Subsidiary is under an audit. All
charges, accruals and reserves on the books of the Trust and each of its Subsidiaries in respect of
any taxes or other governmental charges are in accordance with GAAP.



     (k) Financial Statements. The Trust has furnished to each Lender copies of (i) the
audited consolidated balance sheet of the Trust and its consolidated Subsidiaries for the fiscal
year ending December 31, 2007, and the related audited consolidated statements of operations, cash
flows and changes in shareholders’ equity for the fiscal year ending on such dates, with the
opinion thereon of KPMG LLP, and (ii) the unaudited consolidated balance sheet of the Trust and its
consolidated Subsidiaries for the fiscal quarter ending September 30, 2008, and the related
unaudited consolidated statements of operations and cash flows of the Trust and its consolidated
Subsidiaries for the fiscal quarter ending on such date. Such financial statements (including in
each case related schedules and notes) present fairly, in all material respects and in accordance
with GAAP consistently applied throughout the periods involved, the consolidated financial position
of the Trust and its consolidated Subsidiaries at their respective dates and the



55









 







results of operations and the cash flow for such periods (subject, as to interim statements,
to changes resulting from normal year-end audit adjustments). Except as set forth in the Schedules
to this Agreement, neither the Trust nor any of its Subsidiaries has on the Agreement Date any
contingent liabilities, liabilities, liabilities for taxes, unusual or long-term commitments or
unrealized or forward anticipated losses from any unfavorable commitments, in each case, that is
not reasonably expected to have a Material Adverse Effect and that would be required to be set
forth in its financial statements or in the notes thereto, except as referred to or reflected or
provided for in said financial statements.



     (l) No Material Adverse Change. Since September 30, 2008, there has been no material
adverse change in the business, assets, liabilities, financial condition, results of operations or
business prospects of the Trust and its Subsidiaries taken as a whole. Each of the Borrowers, the
other Loan Parties and the other Subsidiaries is Solvent.



     (m) ERISA. Each member of the ERISA Group is in compliance with its obligations under
the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and
is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could reasonably be expected to result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code or
(iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.



     (n) Not Plan Assets; No Prohibited Transaction. None of the assets of any Borrower,
any other Loan Party or any other Subsidiary constitute “plan assets” within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder. The execution,
delivery and performance of this Agreement and the other Loan Documents, and the borrowing and
repayment of amounts hereunder, do not and will not constitute non-exempt “prohibited transactions”
under ERISA or the Internal Revenue Code.



     (o) Absence of Defaults. None of the Borrowers, any of the other Loan Parties or any
of the other Subsidiaries is in default under its articles of incorporation, bylaws, partnership
agreement or other similar organizational documents, and no event has occurred, which has not been
remedied, cured or waived, which, in any such case: (i) constitutes a Default or an Event of
Default; or (ii) constitutes, or which with the passage of time, the giving of notice, or both,
would constitute, a default or event of default by any Borrower, any other Loan Party or any other
Subsidiary under any Material Contract (other than this Agreement) or judgment, decree or order to
which any Borrower, any other Loan Party or any other Subsidiary is a party or by which any
Borrower, any other Loan Party or any other Subsidiary, or any of their respective properties may
be bound where, in the case of (i) or (ii), such default or event of default could, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.



56









 





     (p) Environmental Laws. Except as disclosed in the Trust’s Annual Report on Form 10-K
for the year ended December 31, 2007 filed with the Securities and Exchange Commission, each of the
Borrowers, the other Loan Parties and the other Subsidiaries has obtained all Governmental
Approvals which are required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals which the failure to obtain or to comply with could
reasonably be expected to have a Material Adverse Effect. Except for any of the following matters
that could not be reasonably expected to have a Material Adverse Effect, (i) the Trust is not aware
of, and has not received notice of, any past, present, or future events, conditions, circumstances,
activities, practices, incidents, actions, or plans which, with respect to any Borrower, any other
Loan Party or any other Subsidiary, may interfere with or prevent compliance or continued
compliance with Environmental Laws, or may give rise to any common-law or legal liability, or
otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, or investigation,
based on or related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling or the emission, discharge, release or threatened release into the
environment, of any Hazardous Material; and (ii) there is no civil, criminal, or administrative
action, suit, demand, claim, hearing, notice, or demand letter, notice of violation, investigation,
or proceeding pending or, to the Trust’s knowledge, threatened, against any Borrower, any other
Loan Party or any other Subsidiary relating to any Environmental Laws.



     (q) Investment Company; Public Utility Holding Company. None of the Borrowers, any of
the other Loan Parties or any of the other Subsidiaries is (i) is required to register as an
“investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, (ii) is required to register as a “holding company” or
a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding company” or of a
“subsidiary company” of a “holding company”, within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the transactions contemplated by
this Agreement or to perform its obligations under any Loan Document to which it is a party.



     (r) Margin Stock. None of the Borrowers, any of the other Loan Parties or any of the
other Subsidiaries is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System.



     (s) Affiliate Transactions. Except as is not prohibited by Section 9.11, none of the
Borrowers, any of the other Loan Parties or any of the other Subsidiaries is a party to any
transaction with an Affiliate.



     (t) Intellectual Property. Each of the Borrowers, other Loan Parties and the other
Subsidiaries owns or has the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights, service marks, service mark
rights, trade names, trade name rights, trade secrets and copyrights (collectively, “Intellectual
Property”) necessary to the conduct of its businesses as now conducted and as contemplated by the
Loan Documents, without known conflict with any patent, license, franchise, trademark,



57









 







trademark right, service mark, service mark right, trade secret, trade name, copyright or
other proprietary right of any other Person. The Borrowers, the other Loan Parties and the other
Subsidiaries have taken all such steps as they deem reasonably necessary to protect their
respective rights under and with respect to such Intellectual Property. No material claim has been
asserted by any Person with respect to the use of any such Intellectual Property by any Borrower,
any other Loan Party or any other Subsidiary, or challenging or questioning the validity or
effectiveness of any such Intellectual Property. The use of such Intellectual Property by the
Borrowers, the other Loan Parties and the other Subsidiaries, does not infringe on the rights of
any Person, subject to such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of any Borrower, any other Loan Party or any other Subsidiary that could
reasonably be expected to have a Material Adverse Effect.



     (u) Business. As of the Agreement Date, the Trust and its Subsidiaries are engaged in
the business of acquiring, owning, and managing net leased office, industrial and retail
properties, together with other business activities incidental thereto.



     (v) Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation
will be payable with respect to the transactions contemplated hereby, other than fees payable to
Lenders. No other similar fees or commissions will be payable by any Loan Party for any other
services rendered to the Trust or any of its Subsidiaries ancillary to the transactions
contemplated hereby.



     (w) Accuracy and Completeness of Information. No written information, report or other
papers or data (excluding financial projections and other forward looking statements) furnished to
the Agent or any Lender by, on behalf of, or at the direction of, any Borrower, any other Loan
Party or any other Subsidiary in connection with, pursuant to or relating in any way to this
Agreement, contained any untrue statement of a fact material to the creditworthiness of the
Borrowers, the other Loan Parties and the other Subsidiaries taken as a whole or omitted to state a
material fact necessary in order to make such statements contained therein, in light of the
circumstances under which they were made, not misleading. All financial statements (including in
each case all related schedules and notes) furnished to the Agent or any Lender by, on behalf of,
or at the direction of, any Borrower, any other Loan Party or any other Subsidiary in connection
with, pursuant to or relating in any way to this Agreement, present fairly, in all material
respects and in accordance with GAAP consistently applied throughout the periods involved, the
financial position of the Persons involved as at the date thereof and the results of operations for
such periods (subject, as to interim statements, to changes resulting from normal year-end audit
adjustments). All financial projections and other forward looking statements prepared by or on
behalf of any Borrower, any other Loan Party or any other Subsidiary that have been or may
hereafter be made available to the Agent or any Lender were or will be prepared in good faith based
on reasonable assumptions as of the date of such information; provided, however, the Agent and the
Lenders recognize that such projections as to future events are not to be viewed as facts or
guarantees of future performance and that actual results during the period or periods covered by
any such projections may differ from the projected results. As of the Effective Date, no fact is
known to any Borrower which has had, or could reasonably be expected in the future to have (so far
as such Borrower can reasonably foresee), a Material Adverse Effect which has not been set forth in
the financial statements referred to in



58









 







Section 6.1(k) or in such information, reports or other papers or data or otherwise disclosed
in writing to the Agent and the Lenders.



     (x) REIT Status. To the knowledge of the Trust, it qualifies as a REIT and is in
compliance with all requirements and conditions imposed under the Internal Revenue Code to allow
the Trust to maintain its status as a REIT.



     (y) Foreign Assets Control. To the knowledge of the Trust and the Borrowers after due
inquiry, none of the Borrower, any Subsidiary or any Affiliate of the Borrower: (i) is a Sanctioned
Person, (ii) has any of its assets in Sanctioned Entities, or (iii) derives any of its operating
income from investments in, or transactions with, Sanctioned Persons or Sanctioned Entities.



     (z) Security Documents. The Pledge Agreement creates in favor of the Agent, for the
benefit of the Agent and the Lenders, a legal, valid and enforceable security interest in the
Collateral, and the Pledge Agreement constitutes the creation of a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the Borrowers and the other
Loan Parties in such Collateral, in each case prior and superior in right to any other Person.



Section 6.2. Survival of Representations and Warranties, Etc.




     All statements contained in any certificate, financial statement or other instrument delivered
by or on behalf of any Borrower, any other Loan Party or any other Subsidiary to the Agent or any
Lender pursuant to or in connection with this Agreement or any of the other Loan Documents
(including, but not limited to, any such statement made in or in connection with any amendment
hereto or thereto or any such statement contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Borrower, any other Loan Party or any other Subsidiary
prior to the Agreement Date and delivered to the Agent or any Lender in connection with the
underwriting or closing of the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrowers in favor of the Agent or any of the Lenders under this
Agreement. All representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, the date
on which any extension of the Termination Date is effectuated pursuant to Section 2.12 and the date
of the occurrence of any Credit Event, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents or
known by Agent. All such representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of the Loans and the
issuance of the Letters of Credit.



ARTICLE VII. - AFFIRMATIVE COVENANTS




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6, all of the Lenders) shall otherwise consent in the manner provided for in
Section 12.6, the Borrowers shall comply with the following covenants:



59









 





Section 7.1. Preservation of Existence and Similar Matters.




     Except as otherwise permitted under Section 9.7, the Borrowers shall, and shall cause each
other Loan Party and each other Subsidiary to, preserve and maintain its respective existence,
rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation
and qualify and remain qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could reasonably be expected
to have a Material Adverse Effect.



Section 7.2. Compliance with Applicable Law and Material Contracts.




     The Borrowers shall, and shall cause each other Loan Party and each other Subsidiary to,
comply with (a) all Applicable Laws, including the obtaining of all Governmental Approvals, the
failure with which to comply could reasonably be expected to have a Material Adverse Effect, and
(b) all terms and conditions of all Material Contracts to which it is a party.



Section 7.3. Maintenance of Property.




     In addition to the requirements of any of the other Loan Documents, the Borrowers shall, and
shall cause each other Loan Party and each other Subsidiary to, (a) protect and preserve all of its
respective material properties, including, but not limited to, all Intellectual Property, and
maintain in good repair, working order and condition all tangible properties, ordinary wear and
tear excepted, and (b)  make or cause to be made all needed and appropriate repairs, renewals,
replacements and additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, except in the case of either
(a) or (b), where the failure to do so would not cause a Material Adverse Effect.



Section 7.4. Conduct of Business.




     The Borrowers shall, and shall cause each other Loan Party and each other Subsidiary to, carry
on, their respective businesses as described in Section 6.1(u).



Section 7.5. Insurance.




     In addition to the requirements of any of the other Loan Documents, the Borrowers shall, and
shall cause each other Loan Party and each other Subsidiary or with respect to Properties where the
tenant is responsible for providing insurance, the Property Subsidiary shall cause such tenant to
maintain insurance (on a replacement cost basis) with financially sound and reputable insurance
companies against such risks and in such amounts as is customarily maintained by Persons engaged in
similar businesses or as may be required by Applicable Law, and from time to time deliver to the
Agent upon its request a detailed list, together with copies of all policies of the insurance then
in effect, stating the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered thereby.



60









 





Section 7.6. Payment of Taxes and Claims.




     The Borrowers shall, and shall cause each other Loan Party and each other Subsidiary to, pay
and discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims
of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and
rentals which, if unpaid, might become a Lien on any properties of such Person; provided, however,
that this Section shall not require the payment or discharge of any such tax, assessment, charge,
levy or claim which is being contested in good faith by appropriate proceedings which operate to
suspend the collection thereof and for which adequate reserves have been established on the books
of the applicable Borrower, or Subsidiary, in accordance with GAAP.



Section 7.7. Visits and Inspections.




     The Borrowers shall, and shall cause each other Loan Party and each other Subsidiary to,
permit representatives or agents of any Lender or the Agent, from time to time after reasonable
prior notice if no Event of Default shall be in existence, and as often as may be reasonably
requested, but only during normal business hours, to: (a) visit and inspect all properties of the
Borrowers the other Loan Parties and the other Subsidiaries to the extent any such right to visit
or inspect is within the control of such Person; (b) inspect and make extracts from their
respective books and records, including but not limited to management letters prepared by
independent accountants; and (c) discuss with its officers and employees, and its independent
accountants, its business, properties, condition (financial or otherwise), results of operations
and performance. If requested by the Agent, the Borrowers shall execute an authorization letter
addressed to its accountants authorizing the Agent or any Lender to discuss the financial affairs
of any Borrower, any other Loan Party or any other Subsidiary with its accountants. The exercise
by the Agent or a Lender of its rights under this Section shall be at the expense of the Agent or
such Lender, as the case may be, unless an Event of Default shall exist in which case it shall be
at the expense of the Borrowers.



Section 7.8. Use of Proceeds; Letters of Credit.




     The Borrowers shall use the proceeds of the Loans and the Letters of Credit for general
corporate purposes only, including the repayment of the debt under the Existing Credit Agreement,
and the acquisition, renovation and improvement of real property by means of the direct or indirect
investment by the Borrowers in joint ventures sponsored by the Borrowers. No part of the proceeds
of any Loan or Letter of Credit will be used (a) for the purpose of buying or carrying “margin
stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
or to extend credit to others for the purpose of purchasing or carrying any such margin stock or
(b) to finance any operations in, finance investments or activities in, or make any payments to, a
Sanctioned Person or Sanctioned Entity.



Section 7.9. Environmental Matters.




     The Borrowers shall, and shall cause all of the other Loan Parties and all of the other
Subsidiaries to, comply with all Environmental Laws the failure with which to comply could



61









 







reasonably be expected to have a Material Adverse Effect. If any Borrower, any other Loan
Party or any other Subsidiary: (a) receives notice that any violation of any Environmental Law may
have been committed or is about to be committed by such Person, (b) receives notice that any
administrative or judicial complaint or order has been filed or is about to be filed against any
Borrower, any other Loan Party or any other Subsidiary alleging violations of any Environmental Law
or requiring any Borrower, any other Loan Party or any other Subsidiary to take any action in
connection with the release of Hazardous Materials or (c) receives any notice from a Governmental
Authority or private party alleging that any Borrower, any other Loan Party or any other Subsidiary
may be liable or responsible for costs associated with a response to or cleanup of a release of
Hazardous Materials or any damages caused thereby, and the matters referred to in such notices,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect,
the Borrowers shall provide the Agent with a copy of such notice promptly, and in any event within
10 Business Days, after the receipt thereof by a Borrower, any other Loan Party or any other
Subsidiary. The Borrowers shall, and shall cause the other Loan Parties and the other Subsidiaries
to, take promptly all actions necessary to prevent the imposition of any Liens on any of their
respective properties arising out of or related to any Environmental Laws.



Section 7.10. Books and Records.




     The Borrowers shall, and shall cause each of the other Loan Parties and each of the other
Subsidiaries to, maintain books and records pertaining to its respective business operations in
such detail, form and scope as is consistent with good business practice and in accordance with
GAAP.



Section 7.11. Further Assurances.




     The Borrowers shall, at the Borrowers’ cost and expense and upon request of the Agent, execute
and deliver or cause to be executed and delivered, to the Agent such further instruments, documents
and certificates, and do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.



Section 7.12. Release of a Guarantor.




     The Borrowers may request in writing that the Agent release, and upon receipt of such request
the Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor has ceased to
be, or simultaneously with its release from the Guaranty will cease to be, a Guarantor; (ii) no
Default or Event of Default shall then be in existence or would occur as a result of such release,
including without limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1; (iii) any required payment as a result of a Permitted
Financing shall be made; and (iv) the Agent shall have received such written request at least 10
Business Days prior to the requested date of release. Delivery by the Borrowers to the Agent of
any such request shall constitute a representation by the Borrowers that the matters set forth in
the preceding sentence (both as of the date of the giving of such request and as of the date of the
effectiveness of such request) are true and correct with respect to such request.



62









 





Section 7.13. REIT Status.




     The Trust shall at all times maintain its status as a REIT so long as the Board of Trustees
believes it is in the best interest of the Trust.



Section 7.14. Exchange Listing.




     The Trust shall maintain at least one class of common shares of the Trust having trading
privileges on the New York Stock Exchange or the American Stock Exchange or which is the subject of
price quotations in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System.



Section 7.15. Addition of Borrowing Base Assets.




     (a) Upon confirmation of compliance with this Section 7.15(a) by the Agent and the Requisite
Lenders, the Borrowers may from time to time have Properties included in the Borrowing Base Assets
Pool. In such event, the Borrowers shall provide to the Agent written notice thereof (each an
“Confirmation Request”) no later than 10:00 a.m. (New York, New York time) on the Business Day that
is at least ten (10) Business Days prior to the date on which the Borrowers wish to have such asset
included within the Borrowing Base Assets Pool, such Confirmation Request to (i) identify the
Property proposed to be included in the Borrowing Base Assets Pool, (ii) set forth the calculation
of the Borrowing Base Availability attributable to such proposed asset to be reflected on the
Borrowing Base Certificate, and (iii) certify that such asset complies with all of the
representations and warranties applicable to such Property contained in Exhibit J hereto.
Together with the Confirmation Request, the Borrowers shall deliver to the Agent (i) a proforma
Borrowing Base Certificate, (ii) the Borrowers’ credit write-up and approval memo relating to such
prospective Borrowing Base Asset, and (iii) if requested by the Agent, an appraisal report relating
to such prospective Borrowing Base Asset and such other documents as the Agent may request from
time to time (collectively, the “Credit Underwriting Documents”). With respect to any asset which
the Borrowers have requested be added to the Borrowing Base Assets Pool, Borrowers shall be deemed
to represent and warrant hereunder that with respect to such asset all of the representations and
warranties as set forth on Exhibit J hereto are true and correct. Promptly upon receipt of
a Confirmation Request and all related Credit Underwriting Documents (collectively, each, an
“Confirmation Request Package”), the Agent shall provide copies thereof to each Lender.



     (b) On or before 5:00 p.m., New York time, on the tenth (10th) Business Day
following the Agent’s receipt of an Confirmation Request Package, the Agent will advise the
Borrowers as to whether the Agent and the Requisite Lenders have confirmed the Confirmation
Request. If the Agent does not respond to the Confirmation Request within the time period set
forth herein, the Confirmation Request shall be deemed denied and the prospective Borrowing Base
Asset identified in the Confirmation Request shall not be included in the Borrowing Base Asset
Pool. If a Confirmation Request has been confirmed, the subject asset shall thereupon become a
Borrowing Base Asset hereunder.



     (c) Upon any Person becoming a Guarantor after the Effective Date in connection with an
Approval Request, the Borrowers shall deliver to the Agent each of the following items,



63









 







each in form and substance satisfactory to the Agent: (i) a Guaranty executed by such
Guarantor and (ii) the items that would have been delivered under Sections 5.1(a)(iv) through
(viii) and (xiii) if such Guarantor had been one on the Effective Date (including a Pledge
Agreement by such Guarantor relating to the Equity Interests of each Property Subsidiary owned by
such Guarantor). Upon the request of a Lender, the Agent shall send to such Lender copies of each
of the foregoing items once the Agent has received all such items with respect to a Guarantor.



     (d) All determinations by the Agent and the Requisite Lenders as to whether to confirm any
Confirmation Request shall be in their reasonable discretion.



Section 7.16. Removal of Borrowing Base Assets.




     (a) So long as there is no Default pending, upon confirmation of compliance with this Section
7.16(a) by the Agent the Borrowers may from time to time have Properties removed from the Borrowing
Base Assets Pool. In such event, the Borrowers shall provide to the Agent written notice thereof
(each a “Removal Request”) no later than 10:00 a.m. (New York, New York time) on the Business Day
that is at least ten (10) Business Days prior to the date on which the Borrowers wish to have such
asset removed from the Borrowing Base Assets Pool, such Removal Request to (i) identify the
Property proposed to be removed from the Borrowing Base Assets Pool, (ii) set forth the calculation
of the Borrowing Base Availability attributable to such proposed asset to be removed from the
Borrowing Base Certificate, and (iii) have attached thereto a proforma Borrowing Base Certificate.



     (b) Promptly upon receipt of a Removal Request, the Agent shall provide copies thereof to each
Lender. Within ten (10) Business Days after its receipt of a Removal Request, the Agent shall
advise as to whether such the Removal Request satisfies the requirements of subsection (a) above
and the payment required to be made under Section 2.7. If the Agent does not respond to the
Removal Request within the time period set forth herein, the Removal Request shall be deemed denied
and the prospective Borrowing Base Asset identified in the Removal Request shall not be removed
from the Borrowing Base Asset Pool. If a Removal Request has been confirmed, the subject asset
shall thereupon cease to be a Borrowing Base Asset hereunder upon receipt of the payment required
under Section 2.7.



     (c) Notwithstanding any other provision of this Agreement or the other Loan Documents, the
Agent and the Lenders acknowledge and agree that in the event any LRT Entity shall own a Property
which is not intended to be a Borrowing Base Asset, such LRT Entity shall be permitted to sell,
finance, encumber or otherwise transfer such Property without the approval of the Agent or the
Lenders and without the requirement of any payment hereunder.



Section 7.17. Failure of Certain Borrowing Base Assets Representations and Warranties.




     If at any time the Borrowers shall become aware that any representation set forth on Exhibit J
hereto is no longer true and correct with respect to any Borrowing Base Asset in the Borrowing Base
Asset Pool, the Borrowers shall promptly notify the Agent in writing of such event, together with a
detailed description of the factual circumstances giving rise thereto. In such event, the Agent
may, and at the direction of the Requisite Lenders shall, require that the asset no longer be
considered a Borrowing Base Asset for purposes hereof and require that such



64









 







asset be removed from the Borrowing Base Assets Pool. Upon the determination that an asset
shall no longer be considered a Borrowing Base Asset for purposes hereof, the provisions of Section
2.7(b)(i) shall apply.



Section 7.18. Article 8 Securities.




     Notwithstanding any other provision contained in this Agreement, each Borrower hereby
covenants and agrees with the Agent and the Lenders that from and after the date of this Credit
Agreement until this Credit Agreement shall be terminated: (i) it will take no action (nor permit
any Subsidiary to take any action) of any nature whatsoever for any of the equity interests in any
LRT Entity to be treated as “securities” within the meaning of, or governed by, Article 8 of the
UCC; (ii) it will take no action (nor permit any Subsidiary to take any action) of any nature
whatsoever to issue any “securities” within the meaning of, or governed by, Article 8 of the UCC,
whether certificated or uncertificated; (iii) it will take no action (nor permit any Subsidiary to
take any action)of any nature whatsoever to issue any equity interests or voting rights to any
person other than the Borrowers or the Lenders; (iv) it will take no action (nor permit any
Subsidiary to take any action) of any nature whatsoever to enter into, acknowledge or agree to a
control agreement with respect to the equity interests in any LRT Entity; and (v) it will not
consent to or permit the filing of financing statements with respect to equity interests in any LRT
Entity except for financing statements filed by the Lenders with respect to the Facility.



ARTICLE VIII. - INFORMATION




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6, all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.6, the Borrowers shall furnish to each Lender (or to the Agent if so provided below) at
its Lending Office:



Section 8.1. Quarterly Financial Statements.




     As soon as available and in any event within 10 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 55 days after the end of
each of the first, second and third fiscal quarters of the Trust), the unaudited consolidated
balance sheet of the Trust and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income and cash flows of the Trust and its Subsidiaries for
such period, setting forth in each case in comparative form the figures as of the end of and for
the corresponding periods of the previous fiscal year, all of which shall be in form and substance
reasonably satisfactory to the Agent and shall be certified by the chief financial officer or chief
accounting officer of the Trust, in his or her opinion, to present fairly, in accordance with GAAP
and in all material respects, the consolidated financial position of the Trust and its Subsidiaries
as at the date thereof and the results of operations for such period (subject to normal year-end
audit adjustments); provided, however, the Borrowers shall not be required to deliver an item
required under this Section if such item is contained in a Form 10-Q filed by the Trust with the
Securities and Exchange Commission (or any Governmental Authority substituted therefor) and is
publicly available to the Agent and the Lenders.



65









 





Section 8.2. Year-End Statements.




     As soon as available and in any event within 10 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 100 days after the end of
each fiscal year of the Trust), the audited consolidated balance sheet of the Trust and its
Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of
income, changes in shareholders’ equity and cash flows of the Trust and its Subsidiaries for such
fiscal year, setting forth in comparative form the figures as at the end of and for the previous
fiscal year, all of which shall be (a) in form and substance reasonably satisfactory to the Agent,
(b) certified by the chief financial officer or chief accounting officer of the Trust, in his or
her opinion, to present fairly, in accordance with GAAP and in all material respects, the
consolidated financial position of the Trust and its Subsidiaries as at the date thereof and the
results of operations for such period and (c) accompanied by the report thereon of independent
certified public accountants of recognized national standing, whose certificate shall be without a
“going concern” or like qualification or exception, or a qualification arising out of the scope of
the audit, and who shall have authorized the Trust to deliver such financial statements and report
to the Agent and the Lenders; provided, however, the Borrowers shall not be required to deliver an
item required under this Section if such item is contained in a Form 10-K filed by the Trust with
the Securities and Exchange Commission (or any Governmental Authority substituted therefor) and is
publicly available to the Agent and the Lenders.



Section 8.3. Compliance Certificate.




     At the time financial statements are furnished pursuant to Sections 8.1 and 8.2, and if the
Agent or the Requisite Lenders reasonably believe that a Default or Event of Default may exist or
may be likely to occur, within 5 Business Days of the Agent’s request with respect to any other
fiscal period, a certificate substantially in the form of Exhibit G (a “Compliance Certificate”)
executed by the chief financial officer or chief accounting officer of the Trust: (a) setting forth
in reasonable detail as at the end of such quarterly accounting period, fiscal year, or other
fiscal period, as the case may be, the calculations required to establish whether or not the
Borrowers were in compliance with the covenants contained in Sections 9.1, 9.2 and 9.4 and
(b) stating that, to the best of his or her knowledge, information and belief after due inquiry, no
Default or Event of Default exists, or, if such is not the case, specifying such Default or Event
of Default and its nature, when it occurred, whether it is continuing and the steps being taken by
the Borrowers with respect to such event, condition or failure. Together with each Compliance
Certificate delivered in connection with quarterly or annual financial statements, the Borrowers
shall deliver a statement of Funds From Operations for the fiscal period then ending, in form and
detail reasonably satisfactory to the Agent.



Section 8.4. Other Information.




     (a) Management Reports. Promptly upon receipt thereof, copies of all management
reports, if any, submitted to any Borrower or its Board of Directors by its independent public
accountants;



     (b) Securities Filings. Prompt notice of the filing of all registration statements,
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other periodic reports which



66









 







any of the Borrowers, any other Loan Party or any other Subsidiary shall file with the
Securities and Exchange Commission (or any Governmental Authority substituted therefor) or any
national securities exchange, and promptly upon the filing thereof copies of any of the foregoing
that is not publicly available to the Agent and the Lenders or that the Agent or any Lender may
request;



     (c) Shareholder Information; Press Releases. Promptly upon the mailing thereof to the
shareholders of the Trust or Operating Partnership generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof copies of all press
releases issued by any Borrower or any other Subsidiary to the extent not publicly available;



     (d) ERISA. If and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to
any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement
or makes any amendment to any Plan or Benefit Arrangement, and such failure or amendment has
resulted or could reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security, a certificate of a duly authorized executive of the Trust setting forth
details as to such occurrence and the action, if any, which the Trust or applicable member of the
ERISA Group is required or proposes to take;



     (e) Litigation. To the extent any Borrower or any other Subsidiary is aware of the
same, prompt notice of the commencement of any proceeding or investigation by or before any
Governmental Authority and any action or proceeding in any court or other tribunal or before any
arbitrator against or in any other way relating adversely to, or adversely affecting, any Borrower
or any other Subsidiary or any of their respective properties, assets or businesses which could
reasonably be expected to have a Material Adverse Effect, and prompt notice of the receipt of
notice that any United States income tax returns of the Trust or any of its Subsidiaries are being
audited, if such audit could reasonably be expected to have a Material Adverse Effect;



     (f) Change of Management or Financial Condition. Prompt notice of any change in the
senior management of the Trust or the Operating Partnership and any change in the business, assets,
liabilities, financial condition, results of operations or business prospects of any Borrower or
any other Subsidiary which has had or could reasonably be expected to have a Material Adverse
Effect;



67









 





     (g) Default. Notice of the occurrence of any of the following promptly upon a
Responsible Officer of the Trust obtaining knowledge thereof: (i) any Default or Event of Default
or (ii) any event which constitutes or which with the passage of time, the giving of notice, or
otherwise, would constitute a default or event of default by any Borrower or any other Subsidiary
under any Material Contract to which any such Person is a party or by which any such Person or any
of its respective properties may be bound;



     (h) Judgments. Prompt notice of any order, judgment or decree in excess of
$5,000,000.00 having been entered against any Borrower or any other Subsidiary or any of their
respective properties or assets;



     (i) Material Asset Sales. Prompt notice of the sale, transfer or other disposition of
any material assets of any Borrower or any other Subsidiary to any Person other than a Borrower or
another Subsidiary;



     (j) Patriot Act Information. From time to time and promptly upon each request,
information identifying any Borrower or any other Loan Party as a Lender may request in order to
comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
and



     (k) Other Information. From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further information regarding
the business, assets, liabilities, financial condition, results of operations or business prospects
of any Borrower, any other Loan Party or any other Subsidiary as the Agent or any Lender may
reasonably request.



ARTICLE
IX.  - NEGATIVE COVENANTS




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6, all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.6, the Borrowers shall comply with the following covenants:



Section 9.1. Financial Covenants.




     The Borrowers shall not permit:



     (a) Maximum Leverage Ratio. The ratio of (i) Total Indebtedness to (ii) Capitalized
Value, to exceed 0.65 to 1.00 at any time, provided:




     (i) At Borrowers’ option the Maximum Leverage Ratio can increase to up to 0.675 to 1.00
for two consecutive quarters once during the initial term of the Facility after which the
Maximum Leverage Ratio would then revert to 0.65 to 1.00 following this one time leverage
increase; and




     (ii) If the Borrowers exercise the option to extend the Termination Date of the
Facility under Section 2.12, the Maximum Leverage Ratio will be reduced to 0.60 to 1.00.
However, at Borrowers’ option the Maximum Leverage Ratio can increase up to 0.625 to 1.00
for two consecutive quarters once during the extension period of the



68









 







Facility after which Maximum Leverage would then revert to 0.60 to 1.00 following this
one time leverage increase.



     (b) Minimum Debt Service Ratio. The ratio of (i) Adjusted EBITDA of the Trust and its
Subsidiaries determined on a consolidated basis for the period of two consecutive fiscal quarters
of the Trust most recently ending to (ii) Debt Service for such period, to be less than 1.50 to
1.00 at any time.



     (c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted EBITDA for the
period of two consecutive fiscal quarters of the Trust most recently ending to (ii) Fixed Charges
for such period, to be less than 1.40 to 1.00 at any time.



     (d) Maximum Recourse Secured Indebtedness Ratio. The ratio of (i) Secured
Indebtedness (excluding Nonrecourse Indebtedness and amounts drawn under the Revolving Facility) of
the Borrowers and the Guarantors determined on a consolidated basis to (ii) Capitalized Value, to
be greater than 0.10 to 1.00 at any time.



     (e) Maximum Loan to Value Ratio. The ratio of (x) the principal amount of Secured
Indebtedness (other than Nonrecourse Indebtedness) secured by a Lien on a Stabilized Property or a
Development Property to (y) the Value of such Property, to exceed the applicable ratio in the
following table at any time:



	 	 	 
	Property Type	 	Maximum Ratio
	Stabilized Property
	 	0.75 to 1.00
	Development Property
	 	0.80 to 1.00






     (f) Minimum Net Worth. Tangible Net Worth at any time to be less than
(i) $1,260,000,000.00 plus (ii) 75.0% of the Net Proceeds of all Equity Issuances effected
by the Trust or any Subsidiary after December 31, 2008 (other than (x) Equity Issuances to the
Trust or any Subsidiary and (y) Equity Issuances by the Trust or any Subsidiary, to the extent the
proceeds thereof are used at the time of such Equity Issuance (or within twelve (12) months of such
Equity Issuance) to redeem, repurchase or otherwise acquire or retire any other Equity Interest
(other than Mandatorily Redeemable Stock) of the Trust or such Subsidiary, as the case may be).



     (g) Floating Rate Debt. The ratio of (i) Floating Rate Debt of the Trust and its
Subsidiaries determined on a consolidated basis to (ii) Total Indebtedness, to exceed 0.35 to 1.00
at any time.



Section 9.2. Restricted Payments.




     The Trust shall not, and shall not permit any of its Subsidiaries to, declare or make any
Restricted Payment; provided, however, that the Trust and its Subsidiaries may declare and make the
following Restricted Payments so long as no Default or Event of Default would result therefrom:



69









 





     (a) the Operating Partnership may make cash distributions to the Trust and other holders of
partnership interests in the Operating Partnership with respect to any fiscal year ending during
the term of this Agreement to the extent necessary for the Trust to make, and the Trust may so
make, cash distributions to its shareholders in an aggregate amount not to exceed the greater of
(i) the amount required to be distributed for the Trust to maintain its status as a REIT or
(ii) 95.0% of Funds From Operations;



     (b) the Trust may make cash distributions to its shareholders of capital gains resulting from
gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset
sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;



     (c) any Borrower or any Subsidiary may acquire the Equity Interests of a Subsidiary that is
not a Wholly Owned Subsidiary;



     (d) any Subsidiary (other than the Operating Partnership) that is not a Wholly Owned
Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;



     (e) Subsidiaries may pay Restricted Payments to the Trust or any other Subsidiary; and



     (f) An Operating Partnership or the Trust, as applicable, may exchange Equity Interests in
such Operating Partnership for Equity Interests in the Trust.


Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of
Default exists, the Operating Partnership may only make cash distributions to the Trust and other
holders of partnership interests in the Operating Partnership, and the Trust may distribute to its
shareholders such cash distributions received from the Operating Partnership, during any fiscal
year in an aggregate amount not to exceed the minimum amount necessary for the Trust to maintain
its status as a REIT. If a Default or Event of Default specified in Section 10.1(a),
Section 10.1(b), Section 10.1(f) or Section 10.1(g) shall exist, or if as a result of the
occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to
Section 10.2(a), the Trust shall not, and shall not permit any Subsidiary to, make any Restricted
Payments to any Person other than to the Trust or any Subsidiary.




Section 9.3. Indebtedness.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary
to, incur, assume, or otherwise become obligated in respect of any Indebtedness after the Agreement
Date if immediately prior to the assumption, incurring or becoming obligated in respect thereof, or
immediately thereafter and after giving effect thereto, a Default or Event of Default is or would
be in existence, including without limitation, a Default or Event of Default resulting from a
violation of any of the covenants contained in Section 9.1.



Section 9.4. Certain Permitted Investments.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
make any Investment in or otherwise own the following items which would cause



70









 







the aggregate value of such holdings of the Borrowers, the other Loan Parties and the other
Subsidiaries to exceed the applicable limits set forth below:



     (a) Investments in Unconsolidated Affiliates and other Persons that are not Subsidiaries, such
that the aggregate value of such Investments (determined in a manner consistent with the definition
of Capitalized Value or, if not contemplated under the definition of Capitalized Value, as
determined in accordance with GAAP) exceeds 20.0% of Capitalized Value at any time;



     (b) raw land, such that the current book value of all raw land exceeds 10.0% of Capitalized
Value;



     (c) real property under construction such that the aggregate Construction Budget for all such
real property exceeds 15.0% of Capitalized Value at any time;



     (d) Mortgage Receivables and other promissory notes, such that the aggregate book value of all
such Mortgage Receivables and promissory notes exceeds 10.0% of Capitalized Value at any time; and



     (e) Properties leased under ground leases by any Borrower or any Subsidiary, as lessee, such
that the current value (determined in accordance with the applicable provisions of the term
“Capitalized Value”) of such Properties exceeds 25.0% of Capitalized Value at any time.


In addition to the foregoing limitations, the aggregate value of all of the items subject to the
limitations in the preceding clauses (a) through (e) shall not exceed 40.0% of Capitalized Value at
any time.




Section 9.5. Investments Generally.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
directly or indirectly, acquire, make or purchase any Investment, or permit any Investment of such
Person to be outstanding on and after the Agreement Date, other than the following:



     (a) Investments in Subsidiaries in existence on the Agreement Date and disclosed on Part I of
Schedule 6.1.(b);



     (b) Investments to acquire Equity Interests of a Subsidiary or any other Person who after
giving effect to such acquisition would be a Subsidiary, so long as in each case (i) immediately
prior to such Investment, and after giving effect thereto, no Default or Event of Default is or
would be in existence and (ii) if such Subsidiary is (or after giving effect to such Investment
would become) a Guarantor or Property Subsidiary, the terms and conditions set forth in Section
7.15 are satisfied;



     (c) Investments permitted under Section 9.4;



     (d) Investments in Cash Equivalents;



71









 





     (e) intercompany Indebtedness among the Loan Parties and the Wholly Owned Subsidiaries of the
Loan Parties provided that such Indebtedness is permitted by the terms of Section 9.3;



     (f) loans and advances to officers and employees for moving, entertainment, travel and other
similar expenses in the ordinary course of business consistent with past practices; and



     (g) any other Investment so long as immediately prior to making such Investment, and
immediately thereafter and after giving effect thereto, no Default or Event of Default is or would
be in existence.



Section 9.6. Liens; Negative Pledges; Other Matters.




     (a) The Borrowers shall not, and shall not permit any other Loan Party or any other Property
Subsidiary to, create, assume, or incur any Lien (other than Permitted Liens) upon any of its
properties, assets, income or profits of any character whether now owned or hereafter acquired if
immediately prior to the creation, assumption or incurring of such Lien, or immediately thereafter,
a Default or Event of Default is or would be in existence, including without limitation, a Default
or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.
The Borrowers shall not, and shall not permit any other Loan Party or any other Property Subsidiary
to, create, assume, or incur any Lien (other than Permitted Liens) upon any Equity Interests
subject to the Pledge Agreement or any Property included in the Borrowing Base Assets Pool, other
than Permitted Liens.



     (b) The Borrowers shall not, and shall not permit any other Loan Party or any other Property
Subsidiary to, enter into, assume or otherwise be bound by any Negative Pledge except for a
Negative Pledge contained in (i) an agreement (x) evidencing Indebtedness which such Borrower, Loan
Party or Property Subsidiary may create, incur, assume, or permit or suffer to exist under
Section 9.3, (y) which Indebtedness is secured by a Lien permitted to exist under the Loan
Documents, and (z) which prohibits the creation of any other Lien on only the property securing
such Indebtedness as of the date such agreement was entered into; or (ii) in an agreement relating
to the sale of a Property Subsidiary or assets pending such sale, provided that in any such case
the Negative Pledge applies only to the Subsidiary or the assets that are the subject of such sale.



     (c) The Borrowers shall not, and shall not permit any other Loan Party or any other Property
Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Property Subsidiary to: (i) pay
dividends or make any other distribution on any of such Property Subsidiary’s capital stock or
other equity interests owned by a Borrower or any Property Subsidiary; (ii) pay any Indebtedness
owed to a Borrower or any Property Subsidiary; (iii) make loans or advances to a Borrower or any
Property Subsidiary; or (iv) transfer any of its property or assets to a Borrower or any Property
Subsidiary.



Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Property
Subsidiary to: (i) enter into any transaction of merger or consolidation; (ii) liquidate, wind up
or



72









 







dissolve itself (or suffer any liquidation or dissolution); or (iii) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or
substantially all of its business or assets, whether now owned or hereafter acquired; provided,
however, that:



     (a) any of the actions described in the immediately preceding clauses (i) through (iii) may be
taken with respect to any Property Subsidiary or any other Loan Party (other than a Borrower) so
long as immediately prior to the taking of such action, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence; notwithstanding the
foregoing, any such Loan Party (other than a Borrower) may enter into a transaction of merger
pursuant to which such Loan Party is not the survivor of such merger only if (i) the Borrowers
shall have given the Agent and the Lenders at least 10 Business Days’ prior written notice of such
merger, such notice to include a certification to the effect that immediately after and after
giving effect to such action, no Default or Event of Default is or would be in existence; (ii) if
the survivor entity is a Guarantor within 5 Business Days of consummation of such merger, the
survivor entity (if not already a Guarantor) shall have executed and delivered an assumption
agreement in form and substance reasonably satisfactory to the Agent pursuant to which such
survivor entity shall expressly assume all of such Loan Party’s Obligations under the Loan
Documents to which it is a party; (iii) within 10 Business Days of consummation of such merger, the
survivor entity delivers to the Agent the following: (A) items of the type referred to in Sections
5.1(a)(iv) through (viii) with respect to the survivor entity as in effect after consummation of
such merger (if not previously delivered to the Agent and still in effect), (B) copies of all
documents entered into by such Loan Party or the survivor entity to effectuate the consummation of
such merger, including, but not limited to, articles of merger and the plan of merger, (C) copies,
certified by the Secretary or Assistant Secretary (or other individual performing similar
functions) of such Loan Party or the survivor entity, of all corporate and shareholder action
authorizing such merger and (D) copies of any filings with the Securities and Exchange Commission
in connection with such merger; and (iv) such Loan Party and the survivor entity each takes such
other action and delivers such other documents, instruments, opinions and agreements as the Agent
may reasonably request;



     (b) the Borrowers, the other Loan Parties and the other Property Subsidiaries may lease and
sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary
course of their business;



     (c) a Person may merge with and into a Borrower so long as (i) such Borrower is the survivor
of such merger, (ii) immediately prior to such merger, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence, and (iii) the Borrowers
shall have given the Agent and the Lenders at least 10 Business Days’ prior written notice of such
merger, such notice to include a certification as to the matters described in the immediately
preceding clause (ii) (except that such prior notice shall not be required in the case of the
merger of a Property Subsidiary with and into a Borrower);



     (d) the Borrowers and the other Loan Parties may sell, transfer or dispose of assets among
themselves, and the other Subsidiaries that are not Loan Parties may sell, transfer or dispose of
assets among themselves or to a Borrower or other Loan Party.



73









 





Section 9.8. Fiscal Year.




     The Trust shall not change its fiscal year from that in effect as of the Agreement Date.



Section 9.9. Modifications to Material Contracts.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
enter into any amendment or modification to any Material Contract which could reasonably be
expected to have a Material Adverse Effect.



Section 9.10. Modifications of Organizational Documents.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
amend, supplement, restate or otherwise modify its articles or certificate of incorporation,
by-laws, operating agreement, declaration of trust, partnership agreement or other applicable
organizational document if such amendment, supplement, restatement or other modification could
reasonably be expected to have a Material Adverse Effect.



Section 9.11. Transactions with Affiliates.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
permit to exist or enter into, any transaction (including the purchase, sale, lease or exchange of
any property or the rendering of any service) with any Affiliate (other than a Loan Party), except
transactions in the ordinary course of and pursuant to the reasonable requirements of the business
of such Borrower, other Loan Party or other Subsidiary and upon fair and reasonable terms which
are no less favorable to such Borrower, other Loan Party or other Subsidiary than would be obtained
in a comparable arm’s length transaction with a Person that is not an Affiliate.



Section 9.12. ERISA Exemptions.




     The Borrowers shall not, and shall not permit any other Loan Party or any other Subsidiary to,
permit any of its respective assets to become or be deemed to be “plan assets” within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder.



ARTICLE X. - DEFAULT




Section 10.1. Events of Default.




     Each of the following shall constitute an Event of Default, whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or
pursuant to any judgment or order of any Governmental Authority:



     (a) Default in Payment of Principal. Any Borrower shall fail to pay when due (whether
upon demand, at maturity, by reason of acceleration or otherwise) the principal of any of the
Loans, or any Reimbursement Obligation.



74









 





     (b) Default in Payment of Interest and Other Obligations. Any Borrower shall fail to
pay when due any interest on any of the Loans or any of the other payment Obligations owing by the
Borrowers under this Agreement or any other Loan Document, or any other Loan Party shall fail to
pay when due any payment Obligation owing by such other Loan Party under any Loan Document to which
it is a party, and such failure shall continue for a period of 5 Business Days.



     (c) Default in Performance. (i) Any Borrower shall fail to perform or observe any
term, covenant, condition or agreement contained in the second proviso of the second sentence of
Section 2.3(b), in Section 8.4(g), in Section 7.18 or in Article IX or (ii) any Borrower or any
other Loan Party shall fail to perform or observe any term, covenant, condition or agreement
contained in this Agreement or any other Loan Document to which it is a party and not otherwise
mentioned in this Section and in the case of this clause (ii) only such failure shall continue for
a period of 30 days after the earlier of (x) the date upon which a Responsible Officer of any
Borrower or such other Loan Party obtains knowledge of such failure or (y) the date upon which any
Borrower has received written notice of such failure from the Agent.



     (d) Misrepresentations. Any written statement, representation or warranty made or
deemed made by or on behalf of any Borrower or any other Loan Party under this Agreement or under
any other Loan Document, or any amendment hereto or thereto, or in any other writing or statement
at any time furnished or made or deemed made by or on behalf of any Borrower or any other Loan
Party to the Agent or any Lender, shall at any time prove to have been incorrect or misleading, in
light of the circumstances in which made or deemed made, in any material respect when furnished or
made or deemed made.



     (e) Indebtedness Cross-Default; Derivatives Contracts.




     (i) Any Borrower, any other Loan Party or any other Subsidiary shall fail to pay when
due and payable, within any applicable grace or cure period, the principal of, or interest
on, any Indebtedness (other than the Loans and Reimbursement Obligations) having an
aggregate outstanding principal amount at the time of default of $10,000,000.00 or more in
the case of Indebtedness that is not Nonrecourse Indebtedness, or $25,000,000.00 or more in
the case of Nonrecourse Indebtedness (all such Indebtedness being referred to as “Material
Indebtedness”); or




     (ii) (x) the maturity of any Material Indebtedness shall have been accelerated in
accordance with the provisions of any indenture, contract or instrument evidencing,
providing for the creation of or otherwise concerning such Material Indebtedness or (y) any
Material Indebtedness shall have been required to be prepaid or repurchased prior to the
stated maturity thereof;




     (iii) any other event shall have occurred and be continuing which permits any holder or
holders of Material Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person, to accelerate the maturity of any such Material Indebtedness or
require any such Material Indebtedness to be prepaid or repurchased prior to its stated
maturity; or



75









 






     (iv) there occurs under any Derivatives Contract an Early Termination Date (as defined
in such Derivatives Contract) resulting from (A) any event of default under such Derivatives
Contract as to which any Loan Party is the Defaulting Party (as defined in such Derivatives
Contract) or (B) any Termination Event (as so defined) under such Derivatives Contract as to
which any Loan Party is an Affected Party (as so defined) and, in either event, the
Derivatives Termination Value owed by any Loan Party as a result thereof is $10,000,000.00
or more.



     (f) Voluntary Bankruptcy Proceeding. Any Borrower, any other Loan Party or any other
Subsidiary (other than a Subsidiary that, together with all other Subsidiaries then subject to a
bankruptcy proceeding or other proceeding or condition described in this subsection or the
immediately following subsection, does not account for more than $25,000,000.00 of Capitalized
Value) shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as amended, or
other federal bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take
advantage of any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent to, or fail to
contest in a timely and appropriate manner, any petition filed against it in an involuntary case
under such bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection; (iv) apply for or consent to, or fail to contest
in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver,
custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or
foreign; (v) admit in writing its inability to pay its debts as they become due; (vi) make a
general assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to creditors
under any Applicable Law; or (viii) take any corporate or partnership action for the purpose of
effecting any of the foregoing.



     (g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against any Borrower, any other Loan Party or any other Subsidiary (other than a Subsidiary that,
together with all other Subsidiaries then subject to a bankruptcy proceeding or other proceeding or
condition described in this subsection or the immediately preceding subsection, does not account
for more than $25,000,000.00 of Capitalized Value) in any court of competent jurisdiction seeking:
(i) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now
or hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such Person, or
of all or any substantial part of the assets, domestic or foreign, of such Person, and such case or
proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or
an order granting the remedy or other relief requested in such case or proceeding against such
Borrower, such other Loan Party or such other Subsidiary (including, but not limited to, an order
for relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.



     (h) Litigation; Enforceability. Any Borrower or any other Loan Party shall disavow,
revoke or terminate (or attempt to terminate) any Loan Document to which it is a party or shall
otherwise challenge or contest in any action, suit or proceeding in any court or before any
Governmental Authority the validity or enforceability of any Loan Document, or any Loan



76









 







Document shall cease to be in full force and effect (except as a result of the express terms
thereof).



     (i) Judgment. A judgment or order for the payment of money or for an injunction shall
be entered against any Borrower, any other Loan Party, or any other Subsidiary by any court or
other tribunal and (i) such judgment or order shall continue for a period of 30 days without being
paid, stayed or dismissed through appropriate appellate proceedings and (ii) either (A) the amount
of such judgment or order for which insurance has not been acknowledged in writing by the
applicable insurance carrier (or the amount as to which the insurer has denied liability) exceeds,
individually or together with all other such outstanding judgments or orders entered against (x) in
the case of the Borrowers and the other Loan Parties, $10,000,000.00 or (y) in the case of the
other Subsidiaries, $25,000,000.00 or (B) in the case of an injunction or other non-monetary
judgment, such judgment could reasonably be expected to have a Material Adverse Effect.



     (j) Attachment. A warrant, writ of attachment, execution or similar process shall be
issued against any property of any Borrower, any other Loan Party or any other Subsidiary which (i)
exceeds, individually or together with all other such warrants, writs, executions and processes,
(x) against the Borrowers and other Loan Parties, $10,000,000.00 in amount or (y) against the other
Subsidiaries, $25,000,000.00 in amount, and in any such case such warrant, writ, execution or
process shall not be discharged, vacated, stayed or bonded for a period of 30 days; provided,
however, that if a bond has been issued in favor of the claimant or other Person obtaining such
warrant, writ, execution or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to the Agent pursuant to which the
issuer of such bond subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of any Loan Party.



     (k) ERISA. Any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $10,000,000.00 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded
Liabilities in excess of $10,000,000.00 shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer, any Plan or Plans having aggregate Unfunded Liabilities in excess of $10,000,000.00; or
a condition shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $10,000,000.00.



     (l) Loan Documents. An Event of Default (as defined therein) shall occur under any of
the other Loan Documents.



     (m) Change of Control/Change in Management.



77









 






     (i) 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 (the “Exchange Act”)), is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person will be deemed to have “beneficial ownership” of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 20.0% of the total voting power of
the then outstanding voting stock of the Trust other than Vornado Realty Trust and/or a
“group” of which Vornado Realty Trust is a member; or




     (ii) During any period of 12 consecutive months ending after the Agreement Date,
individuals who at the beginning of any such 12-month period constituted the Board of
Trustees of the Trust (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Trust was approved by a vote of a
majority of the trustees then still in office who were either trustees at the beginning of
such period or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Trustees of the Trust then in
office.



     (n) Liens. Any Lien purported to be created under any Loan Document shall cease to be,
or shall be asserted by any Borrower or other Loan Party not to be, a valid and perfected Lien on
any Collateral, with the priority required by the applicable Loan Document, except as a result of
the sale or other disposition of the applicable Collateral in a transaction permitted under the
Loan Documents;



Section 10.2. Remedies Upon Event of Default.




     Upon the occurrence of an Event of Default the following provisions shall apply:



     (a) Acceleration; Termination of Facilities.




     (i) Automatic. Upon the occurrence of an Event of Default specified in
Section 10.1(f) or 10.1(g), (A)(1) the principal of, and all accrued interest on, the Loans
and the Notes at the time outstanding, (2) an amount equal to the Stated Amount of all
Letters of Credit outstanding as of the date of the occurrence of such Event of Default for
deposit into the Collateral Account pursuant to Section 2.13 and (3) all of the other
Obligations of the Borrowers, including, but not limited to, the other amounts owed to the
Lenders and the Agent under this Agreement, the Notes or any of the other Loan Documents
shall become immediately and automatically due and payable by the Borrowers without
presentment, demand, protest, or other notice of any kind, all of which are expressly waived
by the Borrowers and (B) all of the Commitments, the obligation of the Lenders to make Loans
and the obligation of the Agent to issue Letters of Credit hereunder shall all immediately
and automatically terminate.




     (ii) Optional. If any other Event of Default shall exist, the Agent shall, at
the direction of the Requisite Lenders: (A) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an amount equal to the
Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such
Event



78









 







of Default for deposit into the Collateral Account pursuant to Section 2.13 and (3) all
of the other Obligations, including, but not limited to, the other amounts owed to the
Lenders and the Agent under this Agreement, the Notes or any of the other Loan Documents to
be forthwith due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which are expressly
waived by the Borrowers and (B) terminate the Commitments and the obligation of the Lenders
to make Loans hereunder.



     (b) Loan Documents. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise any and all of its rights under any and all of the other Loan
Documents.



     (c) Applicable Law. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise all other rights and remedies it may have under any Applicable Law.



     (d) Appointment of Receiver. To the extent permitted by Applicable Law, the Agent and
the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the
Trust and its Subsidiaries, without notice of any kind whatsoever and without regard to the
adequacy of any security for the Obligations or the solvency of any party bound for its payment, to
take possession of all or any portion of the business operations of the Trust and its Subsidiaries
and to exercise such power as the court shall confer upon such receiver.



Section 10.3. Remedies Upon Default.




     Upon the occurrence of a Default specified in Section 10.1(g), the Commitments shall
immediately and automatically terminate.



Section 10.4. Allocation of Proceeds.




     If an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the Borrowers hereunder
or thereunder, shall be applied in the following order and priority:




     (a) amounts due the Agent in respect of fees and expenses due under Section 12.2;




     (b) amounts due the Lenders in respect of fees and expenses due under Section 12.2, pro
rata in the amount then due each Lender;




     (c) payments of interest on all Loans and Reimbursement Obligations, to be applied for
the ratable benefit of the Lenders;




     (d) payments of principal of all Loans, Reimbursement Obligations and other Letter of
Credit Liabilities, to be applied for the ratable benefit of the Lenders; provided, however,
to the extent that any amounts available for distribution pursuant to this subsection are
attributable to the issued but undrawn amount of an outstanding Letter of Credit, such
amounts shall be paid to the Agent for deposit into the Collateral Account;



79









 






     (e) amounts due the Agent and the Lenders pursuant to Sections 11.7 and 12.9.;




     (f) payment of all other Obligations and other amounts due and owing by the Borrowers
and the other Loan Parties under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and




     (g) any amount remaining after application as provided above, shall be paid to the
Borrowers or whomever else may be legally entitled thereto.



Section 10.5. Performance by Agent.




     If any Borrower shall fail to perform any covenant, duty or agreement contained in any of the
Loan Documents, the Agent may, after notice to the Borrowers, perform or attempt to perform such
covenant, duty or agreement on behalf of such Borrower after the expiration of any cure or grace
periods set forth herein. In such event, the Borrowers shall, at the request of the Agent,
promptly pay any amount reasonably expended by the Agent in such performance or attempted
performance to the Agent, together with interest thereon at the applicable Post-Default Rate from
the date of such expenditure until paid. Notwithstanding the foregoing, neither the Agent nor any
Lender shall have any liability or responsibility whatsoever for the performance of any obligation
of any Borrower under this Agreement or any other Loan Document.



Section 10.6. Rights Cumulative.




     The rights and remedies of the Agent and the Lenders under this Agreement and each of the
other Loan Documents shall be cumulative and not exclusive of any rights or remedies which any of
them may otherwise have under Applicable Law. In exercising their respective rights and remedies
the Agent and the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any single or partial
exercise of any power or right preclude its other or further exercise or the exercise of any other
power or right.



ARTICLE XI. - THE AGENT




Section 11.1. Authorization and Action.




     Each Lender hereby appoints and authorizes the Agent to take such action as contractual
representative on such Lender’s behalf and to exercise such powers under this Agreement and the
other Loan Documents as are specifically delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan Documents for the
benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any
action taken by the Requisite Lenders in accordance with the provisions of this Agreement or the
Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders. Nothing herein shall be construed to deem the Agent a




80











 




trustee or fiduciary for any Lender or to impose on the Agent duties or obligations other than
those expressly provided for herein. At the request of a Lender, the Agent will forward to such
Lender copies or, where appropriate, originals of the documents delivered to the Agent pursuant to
this Agreement or the other Loan Documents. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the Agent by any Borrower,
any other Loan Party or any other Affiliate of any Borrower, pursuant to this Agreement or any
other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or
any such other Loan Document. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the Obligations), the 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 Requisite Lenders (or all of the Lenders if explicitly required under
any other provision of this Agreement), and such instructions shall be binding upon all Lenders and
all holders of any of the Obligations; provided, however, that, notwithstanding anything in this
Agreement to the contrary, the Agent shall not be required to take any action which exposes the
Agent to personal liability or which is contrary to this Agreement or any other Loan Document or
Applicable Law. Not in limitation of the foregoing, the Agent shall not exercise any right or
remedy it or the Lenders may have under any Loan Document upon the occurrence of a Default or an
Event of Default unless the Requisite Lenders (or all of the Lenders if explicitly required under
any provision of this Agreement) have so directed the Agent to exercise such right or remedy.




Section 11.2. Agent’s Reliance, Etc.




     Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither
the Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any
action taken or omitted to be taken by it or them under or in connection with this Agreement or any
other Loan Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable judgment. Without
limiting the generality of the foregoing, the Agent: (a) may treat the payee of any Note as the
holder thereof until the Agent receives written notice of the assignment or transfer thereof signed
by such payee and in form satisfactory to the Agent; (b) may consult with legal counsel (including
its own counsel or counsel for the Borrowers or any other 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 or any other Person and shall not
be responsible to any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan Document; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any of this Agreement or any other Loan Document or the
satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of
the Borrowers or other Persons (except for the delivery to it of any certificate or document
specifically required to be delivered to it pursuant to Section 5.1) or inspect the property, books
or records of the Borrowers or any other Person; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto
or any collateral covered thereby or the perfection or



81









 







priority of any Lien in favor of the Agent on behalf of the Lenders in any such collateral;
and (f) shall incur no liability under or in respect of this Agreement or any other Loan Document
by acting upon any notice, consent, certificate or other instrument or writing (which may be by
telephone or telecopy) believed by it to be genuine and signed, sent or given by the proper party
or parties. Unless set forth in writing to the contrary, the making of its initial Loan by a
Lender shall constitute a certification by such Lender to the Agent and the other Lenders that the
Borrowers have satisfied the conditions precedent for initial Loans set forth in Sections 5.1 and
5.2. that have not previously been waived by the Requisite Lenders.



Section 11.3. Notice of Defaults.




     The Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or
Event of Default unless the Agent has received notice from a Lender or the Borrowers referring to
this Agreement, describing with reasonable specificity such Default or Event of Default and stating
that such notice is a “notice of default.” If any Lender (excluding the Lender which is also
serving as the Agent) becomes aware of any Default or Event of Default, it shall promptly send to
the Agent such a “notice of default.” Further, if the Agent receives such a “notice of default”,
the Agent shall give prompt notice thereof to the Lenders.



Section 11.4. KeyBank as Lender.




     KeyBank, as a Lender, shall have the same rights and powers under this Agreement and any other
Loan Document as any other Lender and may exercise the same as though it were not the Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include KeyBank in each
case in its individual capacity. KeyBank and its affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures
of, serve as financial advisor to, and generally engage in any kind of business with, any Borrower,
any other Loan Party or any other affiliate thereof as if it were any other bank and without any
duty to account therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from any Borrower for services in connection with this Agreement and
otherwise without having to account for the same to the other Lenders. The Lenders acknowledge
that, pursuant to such activities, KeyBank or its affiliates may receive information regarding the
Trust, other Loan Parties, other Subsidiaries and other Affiliates (including information that may
be subject to confidentiality obligations in favor of such Person) and acknowledge that the Agent
shall be under no obligation to provide such information to them.



Section 11.5. Approvals of Lenders.




     All communications from the Agent to any Lender requesting such Lender’s determination,
consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender,
(b) shall be accompanied by a description of the matter or issue as to which such determination,
approval, consent or disapproval is requested, or shall advise such Lender where information, if
any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or
issue to be resolved, (c) shall include, if reasonably requested by such Lender and to the extent
not previously provided to such Lender, written materials and a summary of all oral information
provided to the Agent by the Borrowers in respect of the matter or issue to be



82









 







resolved, and (d) shall include the Agent’s recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within 10 Business Days (or
such lesser or greater period as may be specifically required under the Loan Documents) of receipt
of such communication. Except as otherwise provided in this Agreement, unless a Lender shall give
written notice to the Agent that it specifically objects to the recommendation or determination of
the Agent (together with a written explanation of the reasons behind such objection) within the
applicable time period for reply, such Lender shall be deemed to have conclusively approved of or
consented to such recommendation or determination.



Section 11.6. Lender Credit Decision, Etc.




     Each Lender expressly acknowledges and agrees that neither the Agent nor any of its officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties as to the financial condition, operations, creditworthiness, solvency
or other information concerning the business or affairs of any Borrower, any other Loan Party, any
Subsidiary or any other Person to such Lender and that no act by the Agent hereafter taken,
including any review of the affairs of any Borrower, any other Loan Party or any other Subsidiary,
shall be deemed to constitute any such representation or warranty by the Agent to any Lender. Each
Lender acknowledges that it has made its own credit and legal analysis and decision to enter into
this Agreement and the transactions contemplated hereby, independently and without reliance upon
the Agent, any other Lender or counsel to the Agent, or any of their respective officers,
directors, employees and agents, and based on the financial statements of the Trust, the
Subsidiaries or any other Affiliate thereof, and inquiries of such Persons, its independent due
diligence of the business and affairs of the Trust, the other Loan Parties, the Subsidiaries and
other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it
hereunder, the advice of its own counsel and such other documents and information as it has deemed
appropriate. Each Lender also acknowledges that it will, independently and without reliance upon
the Agent, any other Lender or counsel to the Agent or any of their respective officers, directors,
employees and agents, and based on such review, advice, documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not taking action under
the Loan Documents. Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent under this Agreement or any of the other Loan
Documents, the Agent shall have no duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, financial and other condition or
creditworthiness of any Borrower, any other Loan Party or any other Affiliate thereof which may
come into possession of the Agent, or any of its officers, directors, employees, agents,
attorneys-in-fact or other affiliates; provided Agent, shall, upon any Lender’s request and at such
Lender’s expense, provide copies of any such material received by Agent from the Borrowers related
to the Facility. Each Lender acknowledges that the Agent’s legal counsel in connection with the
transactions contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.



Section 11.7. Indemnification of Agent.




     Each Lender agrees to indemnify the Agent (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so) pro rata in accordance



83









 







with such Lender’s respective Commitment Percentage, from and against any and all actual
out-of-pocket liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
reasonable out-of-pocket costs and expenses, or disbursements of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against the Agent (in its capacity as
Agent but not as a Lender) in any way relating to or arising out of the Loan Documents, any
transaction contemplated hereby or thereby or any action taken or omitted by the Agent under the
Loan Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall be
liable for any portion of such Indemnifiable Amounts to the extent resulting from the Agent’s gross
negligence, willful misconduct or breach of this Agreement as determined by a court of competent
jurisdiction in a final, non-appealable judgment or if the Agent fails to follow the written
direction of the Requisite Lenders (or all of the Lenders if expressly required hereunder) unless
such failure results from the Agent following the advice of counsel to the Agent of which advice
the Lenders have received notice. Without limiting the generality of the foregoing but subject to
the preceding proviso, each Lender agrees to reimburse the Agent (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so), promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees of the counsel(s) of
the Agent’s own choosing) incurred by the Agent in connection with the preparation, negotiation,
execution, or enforcement of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, any suit or action brought by the Agent to enforce the terms of
the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought
against the Agent and/or the Lenders, and any claim or suit brought against the Agent, and/or the
Lenders arising under any Environmental Laws. Such out-of-pocket expenses (including counsel fees)
shall be advanced by the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the
Agent that the Agent will reimburse the Lenders if it is actually and finally determined by a court
of competent jurisdiction that the Agent is not so entitled to indemnification. The agreements in
this Section shall survive the payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this Agreement. If the Borrowers shall
reimburse the Agent for any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.



Section 11.8. Successor Agent.




     The Agent may resign at any time as Agent under the Loan Documents by giving written notice
thereof to the Lenders and the Borrowers. The Agent may be removed as Agent under the Loan
Documents for good cause by all of the Lenders (other than the Lender then acting as Agent) upon
30-days’ prior written notice to the Agent. Upon any such resignation or removal, the Requisite
Lenders (other than the Lender then acting as Agent, in the case of the removal of the Agent under
the immediately preceding sentence) shall have the right to appoint a successor Agent which
appointment shall, provided no Default or Event of Default exists, be subject to the Borrowers’
approval, which approval shall not be unreasonably withheld or delayed (except that the Borrowers
shall, in all events, be deemed to have approved each Lender and its affiliates as a successor
Agent). If no successor Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days after the resigning
Agent’s giving of notice of resignation or the Lenders’ removal of the resigning



84









 







Agent, then the resigning or removed Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be a
commercial bank having total combined assets of at least $50,000,000,000.00. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its duties and
obligations under the Loan Documents. Such successor Agent shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or shall
make other arrangements satisfactory to the current Agent, in either case, to assume effectively
the obligations of the current Agent with respect to such Letters of Credit. After any Agent’s
resignation or removal hereunder as Agent, the provisions of this Article XI shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under
the Loan Documents.



Section 11.9. Titled Agents.




     Each of the Titled Agents in each such respective capacity, assumes no responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement or collection of
any of the Loans, or for any duties as an agent hereunder for the Lenders. The titles of “Sole
Lead Arranger” and “Sole Book Running Manager” are solely honorific and imply no fiduciary
responsibility on the part of the Titled Agents to the Agent, the Borrowers or any Lender and the
use of such titles does not impose on the Titled Agents any duties or obligations greater than
those of any other Lender or entitle the Titled Agents to any rights other than those to which any
other Lender is entitled.



ARTICLE XII. — MISCELLANEOUS




Section 12.1. Notices.




     Unless otherwise provided herein, communications provided for hereunder shall be in writing
and shall be mailed, telecopied or delivered as follows:


If to a Borrower:



Lexington Realty Trust

One Penn Plaza, Suite 4015

New York, New York 10119

Attn: Patrick Carroll

Telephone:     (212) 692-7215

Telecopy:       (212) 594-6600




85









 







If to the Agent:



KeyBank, National Association

225 Franklin Street

Boston, Massachusetts 02110

Attn: Jeffry M. Morrison

Telephone:     (617) 385-6216

Telecopy:       (704) 385-6293



If to a Lender:



To such Lender’s address or telecopy number, as applicable, set

forth on its signature page hereto or in the applicable Assignment

and Acceptance Agreement;



or, as to each party at such other address as shall be designated by such party in a written notice
to the other parties delivered in compliance with this Section. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered or sent by overnight courier, when delivered.
Notwithstanding the immediately preceding sentence, all notices or communications sent by telecopy
to the Agent or any Lender under Article II shall be effective only when actually received by the
intended addressee. Neither the Agent nor any Lender shall incur any liability to the Borrowers
(nor shall the Agent incur any liability to the Lenders) for acting upon any telephonic notice
referred to in this Agreement which the Agent or such Lender, as the case may be, believes in good
faith to have been given by a Person authorized to deliver such notice or for otherwise acting in
good faith hereunder. Failure of a Person designated to get a copy of a notice to receive such copy
shall not affect the validity of notice properly given to any other Person.




Section 12.2. Expenses.




     The Borrowers agree (a) to pay or reimburse the Agent for all of its reasonable out-of-pocket
costs and expenses actually incurred in connection with the preparation, negotiation and execution
of, and any amendment, supplement or modification to, any of the Loan Documents (including due
diligence expenses and travel expenses relating to closing), and the consummation of the
transactions contemplated thereby, including the reasonable fees and disbursements of counsel to
the Agent and costs and expenses in connection with the use of IntraLinks, Inc. or other similar
information transmission systems in connection with the Loan Documents, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses actually incurred in connection
with the enforcement or preservation of any rights under the Loan Documents, including the
reasonable fees and disbursements of their respective counsel and any payments in indemnification
or otherwise payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay, and
indemnify and hold harmless the Agent and the Lenders from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any failure to pay or delay in
paying, documentary, stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or any waiver or
consent under or in respect of, any Loan



86









 







Document and (d) to the extent not already covered by any of the preceding subsections, to pay
or reimburse the Agent and the Lenders for all their costs and expenses incurred in connection with
any bankruptcy or other proceeding of the type described in Section 10.1(f) or 10.1(g), including
the reasonable fees and disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding. If the Borrowers shall fail to pay any amounts
required to be paid by them pursuant to this Section, the Agent and/or the Lenders may pay such
amounts on behalf of the Borrowers and either deem the same to be Loans outstanding hereunder or
otherwise Obligations owing hereunder. Upon the Borrowers’ request, the Agent or any Lender
requesting payment of any amounts under this Section shall provide the Borrowers with a statement
setting forth in reasonable detail the basis for requesting such amounts.



Section 12.3. Setoff.




     Subject to Section 3.3 and in addition to any rights now or hereafter granted under Applicable
Law and not by way of limitation of any such rights, the Agent, each Lender and each Participant is
hereby authorized by each Borrower, at any time or from time to time during the continuance of an
Event of Default, without prior notice to any Borrower or to any other Person, any such notice
being hereby expressly waived, but in the case of a Lender or Participant subject to receipt of the
prior written consent of the Agent exercised in its sole discretion, to set off and to appropriate
and to apply any and all deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at
any time held or owing by the Agent, such Lender or any affiliate of the Agent or such Lender, to
or for the credit or the account of any Borrower against and on account of any of the Obligations,
irrespective of whether or not any or all of the Loans and all other Obligations have been declared
to be, or have otherwise become, due and payable as permitted by Section 10.2, and although such
obligations shall be contingent or unmatured.



Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.




     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWERS, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW
AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND THE BORROWERS HEREBY WAIVES ITS
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL
IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT,
THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE BORROWERS, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE
RELATING TO ANY OF THE LOAN DOCUMENTS.



     (b) EACH OF THE BORROWERS, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT
COURT OF THE SOUTHERN DISTRICT OF



87









 







NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL
HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWERS, THE
AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND
LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM. THE BORROWERS AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN
AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR
ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.



     (c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.



Section 12.5. Successors and Assigns.




     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, except that no Borrower may
assign or otherwise transfer any of its rights or obligations under this Agreement without the
prior written consent of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.



     (b) Any Lender may make, carry or transfer Loans at, to or for the account of any of its
branch offices or the office of an affiliate of such Lender except to the extent such transfer
would result in increased costs to the Borrowers.



     (c) Any Lender may at any time grant to one or more banks or other financial institutions
(each a “Participant”) participating interests in its Commitment or the Obligations owing to such
Lender. Except as otherwise provided in Section 12.3 or Section 3.12, no Participant shall have
any rights or benefits under this Agreement or any other Loan Document. A Participant shall not be
entitled to receive any greater payment under Section 3.12 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrowers’ prior written consent. A
Participant that would be a Foreign Lender if it were a



88









 







Lender shall not be entitled to the benefits of Section 3.12 unless the Borrowers are notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers and the Agent, to comply with Section 3.12(c) as though it were a Lender. In the event
of any such grant by a Lender of a participating interest to a Participant, such Lender shall
remain responsible for the performance of its obligations hereunder, and the Borrowers and the
Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant
such a participating interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrowers hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase, or extend the term or extend the time or waive any
requirement for the reduction or termination of, such Lender’s Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the Loans or portions thereof owing to such
Lender, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which
interest is payable thereon or (v) release any Guarantor (except as otherwise permitted under
Section 7.12). An assignment or other transfer which is not permitted by subsection (d) or (e)
below shall be given effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (c).



     (d) Any Lender may with the prior written consent of the Agent and, so long as no Default or
Event of Default exists, the Borrowers (which consent, in each case, shall not be unreasonably
withheld (it being agreed that the Borrowers’ withholding of consent to an assignment which would
result in the Borrowers having to pay amounts under Section 3.12 shall be deemed to be
reasonable)), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its
rights and obligations under this Agreement and the Notes (including all or a portion of its
Commitments and the Loans owing to such Lender); provided, however, (i) no such consent by the
Borrowers or the Agent shall be required in the case of any assignment to another Lender or any
affiliate of such Lender or another Lender; (ii) unless the Borrowers and the Agent otherwise
agree, after giving effect to any partial assignment by a Lender, the Assignee shall hold, and the
assigning Lender shall retain, a Commitment, or if the Commitments have been terminated, Loans
having an outstanding principal balance, of at least $4,000,000.00 and integral multiples of
$500,000.00 in excess thereof; and (iii) each such assignment shall be effected by means of an
Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Lender of an amount equal to the purchase price agreed between
such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement
with respect to the assigned interest as of the effective date of the Assignment and Acceptance
Agreement and shall have all the rights and obligations of a Lender with respect to the assigned
interest as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall
be released from its obligations hereunder with respect to the assigned interest to a corresponding
extent, and no further consent or action by any party shall be required. Upon the consummation of
any assignment pursuant to this subsection, the transferor Lender, the Agent and the Borrowers
shall make appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender
shall pay to the Agent an administrative fee for processing such assignment in the amount of
$3,500.00. Notwithstanding the foregoing, an assignment by Norddeutsche Landesbank Gironzentrale,
New



89









 







York Branch of its Commitment hereunder to Deutsche Hypothekenbank shall be deemed approved by
the Agent and the Borrowers, and no administrative fee shall be due in connection with such
assignment.



     (e) The Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). The
Agent shall give each Lender and the Borrowers notice of the assignment by any Lender of its rights
as contemplated by this Section. The Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.
The Register and copies of each Assignment and Acceptance Agreement shall be available for
inspection by the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and Acceptance Agreement
executed by an assigning Lender, together with each Note subject to such assignment, the Agent
shall, if such Assignment and Acceptance Agreement has been completed and if the Agent receives the
processing and recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrowers.



     (f) In addition to the assignments and participations permitted under the foregoing provisions
of this Section, any Lender may assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from its obligations
hereunder.



     (g) A Lender may furnish any information concerning any Borrower, any other Loan Party or any
other Subsidiary in the possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants) subject to compliance with Section 12.8.



     (h) Anything in this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to any Borrower, any other Loan Party or
any of their respective Affiliates or Subsidiaries.



     (i) Each Lender agrees that, without the prior written consent of the Borrowers and the Agent,
it will not make any assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or Note under the
Securities Act or any other securities laws of the United States of America or of any other
jurisdiction.



Section 12.6. Amendments.




     (a) Except as otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given,
and any term of this Agreement or of any other Loan Document may



90









 







be amended, and the performance or observance by any Borrower or any other Loan Party or any
other Subsidiary of any terms of this Agreement or such other Loan Document or the continuance of
any Default or Event of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent of the Requisite
Lenders (and, in the case of an amendment to any Loan Document, the written consent of each Loan
Party a party thereto).



     (b) Notwithstanding the foregoing, without the prior written consent of each Lender adversely
affected thereby, no amendment, waiver or consent shall do any of the following:




     (i) increase the Commitments of the Lenders (except for any increase in the Commitments
effectuated pursuant to Section 2.15) or subject the Lenders to any additional obligations;




     (ii) reduce the principal of, or interest rates that have accrued or that will be
charged on the outstanding principal amount of, any Loans or other Obligations;




     (iii) reduce the amount of any Fees payable hereunder or postpone any date fixed for
payment thereof;




     (iv) modify the definition of the term “Termination Date” (except as contemplated under
Section 2.12) or otherwise postpone any date fixed for any payment of any principal of, or
interest on, any Loans or any other Obligations (including the waiver of any Default or
Event of Default as a result of the nonpayment of any such Obligations as and when due), or
extend the expiration date of any Letter of Credit beyond the Termination Date;




     (v) amend or otherwise modify the provisions of Section 3.2;




     (vi) modify the definition of the term “Requisite Lenders” or otherwise modify in any
other manner the number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof, including without limitation,
any modification of this Section 12.6 if such modification would have such effect;




     (vii) release any Guarantor from its obligations under the Guaranty (except as
otherwise permitted under Section 7.12);




     (viii) amend or otherwise modify the provisions of Section 2.14; or




     (ix) increase the number of Interest Periods permitted with respect to Loans under
Section 2.5.



     (c) No amendment, waiver or consent, unless in writing and signed by the Agent, in such
capacity, in addition to the Lenders required hereinabove to take such action, shall affect the
rights or duties of the Agent under this Agreement or any of the other Loan Documents.



91









 





     (d) No waiver shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. Except as otherwise provided in
Section 11.5, no course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any
Event of Default occurring hereunder shall continue to exist until such time as such Event of
Default is waived in writing in accordance with the terms of this Section, notwithstanding any
attempted cure or other action by any Borrower, any other Loan Party or any other Person subsequent
to the occurrence of such Event of Default. Except as otherwise explicitly provided for herein or
in any other Loan Document, no notice to or demand upon the Borrowers shall entitle the Borrowers
to any other or further notice or demand in similar or other circumstances.



     (e) If, in connection with any proposed change, waiver, discharge, termination or other action
under the provisions of this Agreement that requires approval of all Lenders or the Requisite
Lenders, and the consent of one or more of such other Lenders whose consent is required is not
obtained, then the Administrative Agent shall have the right (but not the obligation) to purchase
the Commitment of such non-consenting Lender or Lenders upon payment to such non-consenting
Lender(s) in full of the principal of and interest accrued on each Loan made, or Letter of Credit
issued, by it and all other amounts owing to it or accrued for its account under this Agreement.
Upon any such purchase or assignment, the non-consenting Lender’s interest in the Loans or Letters
of Credit and its rights hereunder (but not its liability in respect thereof or under the Loan
Documents or this Agreement to the extent the same relate to the period prior to the effective date
of the purchase except to the extent assigned pursuant to such purchase) shall terminate on the
date of purchase, and the non-consenting Lender shall promptly execute all documents reasonably
requested to surrender and transfer such interest to the purchaser or assignee thereof, including
an appropriate Assignment and Acceptance Agreement.



Section 12.7. Nonliability of Agent and Lenders.




     The relationship between the Borrowers, on the one hand, and the Lenders and the Agent, on the
other hand, shall be solely that of borrower and lender. Neither the Agent nor any Lender shall
have any fiduciary responsibilities to the Borrowers and no provision in this Agreement or in any
of the other Loan Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to any Lender, any
Borrower, any other Loan Party or any other Subsidiary. Neither the Agent nor any Lender
undertakes any responsibility to the Borrowers to review or inform the Borrowers of any matter in
connection with any phase of the Borrowers’ business or operations.



Section 12.8. Confidentiality.




     The Agent and each Lender shall use reasonable efforts to assure that information about
Borrowers, the other Loan Parties and the other Subsidiaries, and the Properties thereof and their
operations, affairs and financial condition, not generally disclosed to the public, which is
furnished to the Agent or any Lender pursuant to the provisions of this Agreement or any other Loan
Document, is used only for the purposes of this Agreement and the other Loan Documents and shall
not be divulged to any Person other than the Agent, the Lenders, and their respective



92









 







agents who are actively and directly participating in the evaluation, administration or
enforcement of the Loan Documents and other transactions between the Agent or such Lender, as
applicable, and the Borrowers, but in any event the Agent and the Lenders may make disclosure:
(a) to any of their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably requested by any
potential or actual Assignee, Participant or other transferee in connection with the contemplated
transfer of any Commitment or participations therein as permitted hereunder (provided they shall
agree to keep such information confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof or pursuant to legal
process or in connection with any legal proceedings or as otherwise required by Applicable Law;
(d) to the Agent’s or such Lender’s independent auditors and other professional advisors (provided
they shall be notified of the confidential nature of the information); (e) after the happening and
during the continuance of an Event of Default, to any other Person, in connection with the exercise
by the Agent or the Lenders of rights hereunder or under any of the other Loan Documents; (f) upon
the Borrowers’ prior consent (which consent shall not be unreasonably withheld), to any contractual
counter-parties to any swap or similar hedging agreement or to any rating agency; and (g) to the
extent such information (x) becomes publicly available other than as a result of a breach of this
Section actually known to such Lender to be such a breach or (y) becomes available to the Agent or
any Lender on a nonconfidential basis from a source other than any Borrower or any Affiliate.
Notwithstanding the foregoing, the Agent and each Lender may disclose any such confidential
information, without notice to any Borrower or any other Loan Party, to Governmental Authorities in
connection with any regulatory examination of the Agent or such Lender or in accordance with the
regulatory compliance policy of the Agent or such Lender.



Section 12.9. Indemnification.




     (a) The Borrowers shall and hereby agree to indemnify, defend and hold harmless the Agent,
each of the Lenders, any affiliate of the Agent or any Lender, and their respective directors,
officers, shareholders, agents, employees and counsel (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified Costs”):
losses, costs, claims, damages, liabilities, deficiencies, judgments or reasonable expenses of
every kind and nature (including, without limitation, amounts paid in settlement, court costs and
the reasonable fees and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection therewith, but excluding
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses indemnification in
respect of which is specifically covered by Section 3.12 or 4.1 or expressly excluded from the
coverage of such Section 3.12 or 4.1) incurred by an Indemnified Party in connection with, arising
out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by any Borrower of the proceeds of
the Loans or Letters of Credit; (iv) the Agent’s or any Lender’s entering into this Agreement;
(v) the fact that the Agent and the Lenders have established the credit facility evidenced hereby
in favor of the Borrowers; (vi) the fact that the Agent and the Lenders are creditors of the
Borrowers and have or are alleged to have



93









 







information regarding the financial condition, strategic plans or business operations of the
Trust and the Subsidiaries; (vii) the fact that the Agent and the Lenders are material creditors of
the Borrowers and are alleged to influence directly or indirectly the business decisions or affairs
of the Borrowers and the other Subsidiaries or their financial condition; (viii) the exercise of
any right or remedy the Agent or the Lenders may have under this Agreement or the other Loan
Documents; (ix) any civil penalty or fine assessed by the OFAC against, and all reasonable costs
and expenses (including counsel fees and disbursements) incurred in connection with defense thereof
by, the Agent or any Lender as a result of conduct of any Borrower, any other Loan Party or any
Subsidiary that violates a sanction enforced by the OFAC; or (x) any violation or non-compliance by
any Borrower or any Subsidiary of any Applicable Law (including any Environmental Law) including,
but not limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any Environmental Law,
including any Indemnity Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Trust or its Subsidiaries (or its respective properties) (or
the Agent and/or the Lenders as successors to any Borrower) to be in compliance with such
Environmental Laws; provided, however, that the Borrowers shall not be obligated to indemnify any
Indemnified Party for any acts or omissions of such Indemnified Party in connection with matters
described in this subsection to the extent arising from the gross negligence or willful misconduct
of such Indemnified Party, as determined by a court of competent jurisdiction in a final,
non-appealable judgment.



     (b) The Borrowers’ indemnification obligations under this Section 12.9 shall apply to all
Indemnity Proceedings arising out of, or related to, the foregoing whether or not an Indemnified
Party is a named party in such Indemnity Proceeding. In this regard, this indemnification shall
cover all Indemnified Costs of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena requesting the production
of documents). This indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by other creditors of any Borrower or any Subsidiary, any shareholder of any Borrower or
any Subsidiary (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of any Borrower), any account debtor of any Borrower
or any Subsidiary or by any Governmental Authority. If indemnification is to be sought hereunder by
an Indemnified Party, then such Indemnified Party shall notify the Borrowers of the commencement of
any Indemnity Proceeding; provided, however, that the failure to so notify the Borrowers shall not
relieve the Borrowers from any liability that they may have to such Indemnified Party pursuant to
this Section 12.9.



     (c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency
of any bankruptcy proceeding filed by or against any Borrower and/or any Subsidiary.



     (d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrowers at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrowers that such Indemnified Party is not entitled
to indemnification hereunder, upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrowers if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to indemnification
hereunder.



94









 





     (e) An Indemnified Party may conduct its own investigation and defense of, and may formulate
its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as provided
above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed by the
Borrowers. No action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way impair the obligations
and duties of the Borrowers hereunder to indemnify and hold harmless each such Indemnified Party;
provided, however, that if (i) the Borrowers are required to indemnify an Indemnified Party
pursuant hereto and (ii) the Borrowers have provided evidence reasonably satisfactory to such
Indemnified Party that the Borrowers have the financial wherewithal to reimburse such Indemnified
Party for any amount paid by such Indemnified Party with respect to such Indemnity Proceeding, such
Indemnified Party shall not settle or compromise any such Indemnity Proceeding without the prior
written consent of the Borrowers (which consent shall not be unreasonably withheld or delayed).
Notwithstanding the foregoing, an Indemnified Party may settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrowers where (x) no monetary relief is
sought against such Indemnified Party in such Indemnity Proceeding or (y) there is an allegation of
a violation of law by such Indemnified Party.



     (f) If and to the extent that the obligations of the Borrowers under this Section are
unenforceable for any reason, the Borrowers hereby agree to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under Applicable Law.



     (g) The Borrowers’ obligations under this Section shall survive any termination of this
Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are
in addition to, and not in substitution of, any other of their obligations set forth in this
Agreement or any other Loan Document to which it is a party.



Section 12.10. Termination; Survival.




     At such time as (a) all of the Commitments have been terminated, (b) all Letters of Credit
(other than Letters of Credit the expiration dates of which extend beyond the Termination Date as
permitted under Section 2.3(b) and in respect of which the Borrowers have satisfied the
requirements of such Section) have terminated, (c) none of the Lenders is obligated any longer
under this Agreement to make any Loans and (d) all Obligations (other than obligations which
survive as provided in the following two sentences) have been paid and satisfied in full, this
Agreement shall terminate. The indemnities to which the Agent and the Lenders are entitled under
the provisions of Sections 3.12, 4.1, 4.4, 11.7, 12.2 and 12.9 and any other provision of this
Agreement and the other Loan Documents, and the provisions of Section 12.4, shall continue in full
force and effect and shall protect the Agent and the Lenders (i) notwithstanding any termination of
this Agreement, or of the other Loan Documents, against events arising after such termination as
well as before and (ii) at all times after any such party ceases to be a party to this Agreement
with respect to all matters and events existing on or prior to the date such party ceased to be a
party to this Agreement.



95









 





Section 12.11. Severability of Provisions.




     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the remaining provisions
or affecting the validity or enforceability of such provision in any other jurisdiction.



Section 12.12. GOVERNING LAW.




     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



Section 12.13. Patriot Act.




     The Lenders and the Agent each hereby notifies the Borrowers that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is
required to obtain, verify and record information that identifies the Borrowers, which information
includes the name and address of the Borrowers and other information that will allow such Lender or
the Agent, as applicable, to identify the Borrowers in accordance with such Act.



Section 12.14. Counterparts.




     This Agreement and any amendments, waivers, consents or supplements may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument.



Section 12.15. Obligations with Respect to Loan Parties.




     The obligations of a Borrower to direct or prohibit the taking of certain actions by the other
Loan Parties as specified herein shall be absolute and not subject to any defense such Borrower may
have that such Borrower does not control such Loan Parties.



Section 12.16. Limitation of Liability.




     Neither the Agent nor any Lender, nor any affiliate, officer, director, employee, attorney, or
agent of the Agent or any Lender shall have any liability with respect to, and the Borrowers hereby
waive, release, and agree not to sue any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by any Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any
of the transactions contemplated by this Agreement or any of the other Loan Documents. The
Borrowers hereby waive, release, and agree not to sue the Agent or any Lender or any of the Agent’s
or any Lender’s affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions contemplated by this
Agreement or financed hereby.



96









 





Section 12.17. Entire Agreement.




     This Agreement and the other Loan Documents referred to herein embody the final, entire
agreement among the parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the subject matter hereof
and thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.



Section 12.18. Construction.




     The Agent, each Borrower and each Lender acknowledge that each of them has had the benefit of
legal counsel of its own choice and has been afforded an opportunity to review this Agreement and
the other Loan Documents with its legal counsel and that this Agreement and the other Loan
Documents shall be construed as if jointly drafted by the Agent, the Borrowers and the Lenders.



[Signatures on Following Pages]




97









 








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



	 	 	 	 	 
	 	LEXINGTON REALTY TRUST

 	 
	 	By:  	/s/ Joseph Bonventre
 	 
	 	 	Name:  	Joseph Bonventre 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	 	LEPERCQ CORPORATE INCOME FUND L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	LEPERCQ CORPORATE INCOME FUND II L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	NET 3 ACQUISITION L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	Each By: LEX GP-1 Trust, its sole general partner	 	 






	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joseph Bonventre
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Joseph Bonventre	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






[Signatures Continued on Next Page]




98









 








[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as Agent, as a

Lender

 	 
	 	By:  	/s/ Jeffry M. Morrison
 	 
	 	 	Name:  	Jeffry M. Morrison 	 
	 	 	Title:  	Senior Banker 	 
	 



Commitment Amount: $70,000,000.00




Term Loan Commitment $10,500,000.00

Revolving Loan Commitment $59,500,000.00




Lending Office (all Types of Loans):




KeyBank, National Association

225 Franklin Street

Boston, Massachusetts 02110

Attn: Jeffry M. Morrison

Telephone:     (617) 385-6212

Telecopy:       (617) 385-6293




[Signatures Continued on Next Page]




99









 








[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	LENDER:





NORDDEUTSCHE LANDESBANK 

GIROZENTRALE, NEW YORK BRANCH

 	 
	 	By:  	/s/ Dirk Ziemer
 	 
	 	 	Name:  	Dirk Ziemer 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                      /s/ Lita Kot
 	 
	 	 	Name:  	Lita Kot 	 
	 	 	Title:  	Director 	 
	 



Commitment Amount: $70,000,000.00




Term Loan Commitment $70,000,000.00

Revolving Loan Commitment $0




Lending Office (all Types of Loans):




Nord/LB New York Branch

1114 Avenue of the Americas, 37th Floor

New York, NY 10036




Attn: Lita Kot, Director

Telephone:     (212) 812-6923

Telecopy:       (212) 812-6890




100









 





[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	LENDER:



SUMITOMO MITSUI BANKING CORPORATION

 	 
	 	By:  	/s/ William G. Karl
 	 
	 	 	William G. Karl 	 
	 	 	General Manager 	 
	 



Commitment Amount: $35,000,000.00




Term Loan Commitment $35,000,000.00

Revolving Loan Commitment $0




Lending Office (all Types of Loans):




277 Park Avenue

New York, New York 10172

Attn: Justin Kim, Vice President

Telephone:     (212) 224-4058

Telecopy:       (212) 224-4887




101









 






[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	LENDER:



WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Matt Ricketts
 	 
	 	 	Matt Ricketts 	 
	 	 	Vice President 	 
	 



Commitment Amount: $35,000,000.00




Term Loan Commitment $23,100,000.00

Revolving Loan Commitment $11,900,000




Lending Office (all Types of Loans):




301 S. College Street, NC 0172

Charlotte, NC 28288




Attn: Karen Berka, Associate

Telephone:     (704) 715-8006

Telecopy:       (704) 715-0065





102









 





[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	LENDER:



BRANCH BANKING AND TRUST COMPANY

 	 
	 	By:  	/s/ Robert Searson
 	 
	 	 	Robert Searson 	 
	 	 	Senior Vice President 	 
	 



Commitment Amount: $20,000,000.00




Term Loan Commitment $13,200,000.00

Revolving Loan Commitment $6,800,000.00




Lending Office (all Types of Loans):




200 West 2nd Street

Winston Salem, NC 27101

Attn: Robert Searson, Senior Vice President

Telephone:     (336) 733-2771

Telecopy:       (336) 733-2740





103









 





[Signature Page to Credit Agreement dated as of

with Lexington Realty Trust et al.]




	 	 	 	 	 
	 	LENDER:



RBS CITIZENS, N.A. d/b/a CHARTER ONE

 	 
	 	By:  	/s/ Donald Woods
 	 
	 	 	Donald Woods 	 
	 	 	Senior Vice President 	 
	 



Commitment Amount: $20,000,000.00




Term Loan Commitment $13,200,000.00

Revolving Loan Commitment $6,800,000.00




Lending Office (all Types of Loans):




1215 Superior Avenue, OHS675

Cleveland, OH 44114

Attn: Erin Mahon, Assistant Vice President

Telephone:     (216) 277-0051

Telecopy:       (216) 277-4600





104









 





EXHIBIT A

FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




     THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of                     , 200___ (the “Agreement”) by
and among                       (the “Assignor”),                     
 (the “Assignee”),
and KEYBANK NATIONAL ASSOCIATION, as Agent (the “Agent”).



     WHEREAS, the Assignor is a Lender under that certain Credit Agreement dated as of February ___,
2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq
Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the
financial institutions party thereto and their assignees under Section 12.5 thereof (the
“Lenders”), the Agent, and the other parties thereto;



     WHEREAS, the Assignor desires to assign to the Assignee, among other things, all or a portion
of the Assignor’s Commitment under the Credit Agreement, all on the terms and conditions set forth
herein; and



     WHEREAS, the Agent consents to such assignment on the terms and conditions set forth herein;



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



     Section 1. Assignment.



     (a) Subject to the terms and conditions of this Agreement and in consideration of the payment
to be made by the Assignee to the Assignor pursuant to Section 2 of this Agreement, effective as of
                    ,
200___ (the “Assignment Date”), the Assignor hereby irrevocably sells, transfers and
assigns to the Assignee, without recourse, a $                     interest (such interest being the
“Assigned Commitment”) in and to the Assignor’s Commitment and all of the other rights and
obligations of the Assignor under the Credit Agreement, the Assignor’s Note and the other Loan
Documents (representing                     % in respect of the aggregate amount of all Lenders’ Commitments),
including without limitation, a principal amount of outstanding Loans equal to $                     and all
voting rights of the Assignor associated with the Assigned Commitment, all rights to receive
interest on such amount of Loans and all facility and other Fees with respect to the Assigned
Commitment and other rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment. The Assignee, subject to the terms and conditions hereof,
hereby assumes all obligations of the Assignor as a Lender with respect to the Assigned Commitment,
which obligations shall include, but shall not be limited to, the obligation to make Loans to the
Borrowers with respect to the Assigned Commitment, the obligation to pay the Agent amounts due in
respect of draws under Letters of Credit as required under Section 2.3(i) of the Credit Agreement
and the obligation to indemnify the Agent as provided in the Credit Agreement (the foregoing
enumerated obligations, together with all other similar obligations more particularly set forth in
the Credit Agreement and the other Loan Documents, collectively, the “Assigned Obligations”). The
Assignor shall have



105









 







no further duties or obligations with respect to, and shall have no further interest in, the
Assigned Obligations or the Assigned Commitment from and after the Assignment Date.



     (b) The assignment by the Assignor to the Assignee hereunder is without recourse to the
Assignor. The Assignee makes and confirms to the Agent, the Assignor, and the other Lenders all of
the representations, warranties and covenants of a Lender under Article XI of the Credit Agreement.
Not in limitation of the foregoing, the Assignee acknowledges and agrees that, except as set forth
in Section 4 below, the Assignor is making no representations or warranties with respect to, and
the Assignee hereby releases and discharges the Assignor for any responsibility or liability for:
(i) the present or future solvency or financial condition of any Borrower, any other Loan Party or
any other Subsidiary, (ii) any representations, warranties, statements or information made or
furnished by any Borrower, any other Loan Party or any other Subsidiary in connection with the
Credit Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or enforceability of the
Credit Agreement, any other Loan Document or any other document or instrument executed in
connection therewith, or the collectibility of the Assigned Obligations, (iv) the perfection,
priority or validity of any Lien with respect to any collateral at any time securing the
Obligations or the Assigned Obligations under the Notes or the Credit Agreement and (v) the
performance or failure to perform by any Borrower or any other Loan Party of any obligation under
the Credit Agreement or any other Loan Document to which it is a party. Further, the Assignee
acknowledges that it has, independently and without reliance upon the Agent, or any affiliate or
subsidiary thereof, the Assignor or any other Lender and based on the financial statements supplied
by the Borrowers and such other documents and information as it has deemed appropriate, made its
own credit and legal analysis and decision to become a Lender under the Credit Agreement. The
Assignee also acknowledges that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement or any other Loan Documents or pursuant to any other obligation. Except
as expressly provided in the Credit Agreement, the Agent shall have no duty or responsibility
whatsoever, either initially or on a continuing basis, to provide the Assignee with any credit or
other information with respect to any Borrower or any other Loan Party or to notify the Assignee of
any Default or Event of Default. The Assignee has not relied on the Agent as to any legal or
factual matter in connection therewith or in connection with the transactions contemplated
thereunder.



     Section 2. Payment by Assignee. In consideration of the assignment made pursuant to
Section 1 of this Agreement, the Assignee agrees to pay to the Assignor on the Assignment Date,
such amount as they may agree.



     Section 3. Payments by Assignor. The Assignor agrees to pay to the Agent on the
Assignment Date the administration fee, if any, payable under the applicable provisions of the
Credit Agreement.



     Section 4. Representations and Warranties of Assignor. The Assignor hereby
represents and warrants to the Assignee that (a) as of the Assignment Date (i) the Assignor is a
Lender under the Credit Agreement having a Commitment under the Credit Agreement (without reduction
by any assignments thereof which have not yet become effective), equal to $                     [and
$                    , respectively], and that the Assignor is not in default of its



106









 







obligations under the Credit Agreement; and (ii) the outstanding balance of Loans owing to the
Assignor (without reduction by any assignments thereof which have not yet become effective) is
$                    ; and (b) it is the legal and beneficial owner of the Assigned Commitment which is
free and clear of any adverse claim created by the Assignor.



     Section 5. Representations, Warranties and Agreements of Assignee. The Assignee
(a) represents and warrants that it is (i) legally authorized to enter into this Agreement, (ii) an
“accredited investor” (as such term is used in Regulation D of the Securities Act) and (iii) an
Eligible Assignee; (b) confirms that it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered in connection therewith or pursuant
thereto and such other documents and information (including without limitation the Loan Documents)
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Agreement; (c) appoints and authorizes the Agent to take such action as contractual representative
on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by
the terms thereof together with such powers as are reasonably incidental thereto; and (d) agrees
that, if not already a Lender and to the extent of the Assigned Commitment, it will become a party
to and shall be bound by the Credit Agreement and the other Loan Documents to which the other
Lenders are a party on the Assignment Date and will perform in accordance therewith all of the
obligations which are required to be performed by it as a Lender with respect to the Assigned
Commitment.



     Section 6. Recording and Acknowledgment by the Agent. Following the execution of
this Agreement, the Assignor will deliver to the Agent (a) a duly executed copy of this Agreement
for acknowledgment and recording by the Agent and (b) the Assignor’s Note. Upon such
acknowledgment and recording, from and after the Assignment Date, the Agent shall make all payments
in respect of the interest assigned hereby (including payments of principal, interest, Fees and
other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement for periods prior to the Assignment Date directly between
themselves.



     Section 7. Addresses. The Assignee specifies as its address for notices and its
Lending Office for all Loans, the offices set forth on Schedule 1 attached hereto.



     Section 8. Payment Instructions. All payments to be made to the Assignee under this
Agreement by the Assignor, and all payments to be made to the Assignee under the Credit Agreement,
shall be made as provided in the Credit Agreement in accordance with the instructions set forth on
Schedule 1 attached hereto or as the Assignee may otherwise notify the Agent.



     Section 9. Effectiveness of Assignment. This Agreement, and the assignment and
assumption contemplated herein, shall not be effective until (a) this Agreement is executed and
delivered by each of the Assignor, the Assignee, the Agent, and if required under Section 12.5(d)
of the Credit Agreement, the Borrowers, and (b) the payment to the Assignor of the amounts, if any,
owing by the Assignee pursuant to Section 2 hereof and (c) the payment to the Agent of the amounts,
if any, owing by the Assignor pursuant to Section 3 hereof. Upon recording and acknowledgment of
this Agreement by the Agent, from and after the Assignment Date, (i) the Assignee shall be a party
to the Credit Agreement with respect to the Assigned Commitment and



107









 







have the rights and obligations of a Lender thereunder to the extent of the Assigned
Commitment and (ii) the Assignor shall relinquish its rights (except as otherwise provided in
Section 12.10 of the Credit Agreement) and be released from its obligations under the Credit
Agreement with respect to the Assigned Commitment; provided, however, that if the Assignor does not
assign its entire interest under the Loan Documents, it shall remain a Lender entitled to all of
the benefits and subject to all of the obligations thereunder with respect to its Commitment.



     Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.



     Section 11. Counterparts. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the same agreement.



     Section 12. Headings. Section headings have been inserted herein for convenience
only and shall not be construed to be a part hereof.



     Section 13. Amendments; Waivers. This Agreement may not be amended, changed, waived
or modified except by a writing executed by the Assignee and the Assignor; provided, however, any
amendment, waiver or consent which shall affect the rights or duties of the Agent under this
Agreement shall not be effective unless signed by the Agent.



     Section 14. Entire Agreement. This Agreement embodies the entire agreement between
the Assignor and the Assignee with respect to the subject matter hereof and supersedes all other
prior arrangements and understandings relating to the subject matter hereof.



     Section 15. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.



     Section 16. Definitions. Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.



     [Include this Section only if Borrowers’ consent is required under Section 12.5(d) Section 17.
Agreements of the Borrowers. The Borrowers hereby agree that the Assignee shall be a
Lender under the Credit Agreement having a Commitment equal to the Assigned Commitment. The
Borrowers agree that the Assignee shall have all of the rights and remedies of a Lender under the
Credit Agreement and the other Loan Documents, including, but not limited to, the right of a Lender
to receive payments of principal and interest with respect to the Assigned Obligations, and to the
Loans made by the Lenders after the date hereof and to receive the commitment and other Fees
payable to the Lenders as provided in the Credit Agreement. Further, the Assignee shall be
entitled to the indemnification provisions from the Borrowers in favor of the Lenders as provided
in the Credit Agreement and the other Loan Documents. The Borrowers further agree, upon the
execution and delivery of this Agreement, to execute in favor of the Assignee, and if applicable
the Assignor, Notes as required by Section 12.5(d) of the Credit Agreement. Upon receipt by the
Assignor of the amounts due the Assignor under Section 2, the Assignor agrees to surrender to the
Borrowers such Assignor’s Notes.]



108









 





[Signatures on Following Pages]




109









 








     IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment and Acceptance
Agreement as of the date and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 
	Accepted as of the date first written above.	 	 
	 
	 	 	 	 	 	 
	AGENT:	 	 
	 
	 	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION, as	 	 
	Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 	 	Title:	 	 
	 

	 	 	 	 	 	 





[Signatures Continued on Following Page]




110









 








[Include signature of the Borrower Representative

     only if required under Section 12.5(d) of the

     Credit Agreement]




Agreed and consented to as of the

      date first written above.




	 	 	 	 	 	 	 
	BORROWERS:	 	 
	 
	 	 	 	 	 	 
	LEXINGTON REALTY TRUST, as Borrower	 	 
	Representative on its own behalf and on behalf of	 	 
	the other Borrowers	 	 
	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Name:
	 

	 	 	 	 	 	 
	 	 	Title:
	 

	 	 	 	 	 	 





111









 





SCHEDULE 1




Information Concerning the Assignee




	 	 	 	 	 	 	 
	Notice Address:

	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Lending Office:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Payment Instructions:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 






112









 








EXHIBIT B




FORM OF NOTICE OF BORROWING




                    , 200___




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




Ladies
and Gentlemen:




     Reference is made to that certain Credit Agreement dated as of February ___, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.




	 	1.	 	The Borrowers hereby request that the Lenders make Loans to the Borrowers in an
aggregate principal amount equal to $                     pursuant to Section 2.1(b) and
$                     pursuant to Section 2.2(b) of the Credit Agreement.
	 
	 	2.	 	The Borrowers request that such Loans be made available to the Borrowers on
                    , 200_.
	 
	 	3.	 	The Borrowers hereby request that the requested Loans all be of the following
Type:




[Check one box only]



                
o Base Rate
Loans

                 o LIBOR Loans, each with an initial Interest Period for a duration of:




	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 month
	 
	 

	 	o
	 	2 months
	 
	 

	 	o
	 	3 months
	 
	 

	 	o
	 	6 months







	 	4.	 	The Borrowers request that the proceeds of this borrowing of Loans be made
available to the Borrowers by                                         .




B-1 









 











     The Borrowers hereby certify to the Agent and the Lenders that as of the date hereof and as of
the date of the making of the requested Loans and after giving effect thereto, (a) no Default or
Event of Default exists or will exist immediately after giving effect to the requested Loans, and
(b) the representations and warranties made or deemed made by the Borrowers and each other Loan
Party in the Loan Documents to which any of them is a party are and shall be true and correct in
all material respects, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date) and except for changes in
factual circumstances not prohibited under the Loan Documents. In addition, the Borrowers certify
to the Agent and the Lenders that all conditions to the making of the requested Loans contained in
Article V of the Credit Agreement will have been satisfied (or waived in accordance with the
applicable provisions of the Loan Documents) at the time such Loans are made.



     If notice of the requested borrowing of Loans was previously given by telephone, this notice
is to be considered the written confirmation of such telephone notice required by Section 2.1(b)
and Section 2.2(b) of the Credit Agreement.



     IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Borrowing
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	LEXINGTON REALTY TRUST, as Borrower  
	 	 	Representative on its own behalf and on behalf of
	 	 	the other Borrowers
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





B-2 









 





EXHIBIT C



FORM OF NOTICE OF CONTINUATION




                    , 200_




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement dated as of February ___, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     Pursuant to Section 2.8 of the Credit Agreement, the Borrowers hereby request a Continuation
of a borrowing of Loans under the Credit Agreement, and in that connection sets forth below the
information relating to such Continuation as required by such Section of the Credit Agreement:




	 	1.	 	The proposed date of such Continuation is                     , 200___.
	 
	 	2.	 	The aggregate principal amount of Loans subject to the requested Continuation
is $                     and was originally borrowed by the Borrowers on
                    , 200_.
	 
	 	3.	 	The portion of such principal amount subject to such Continuation is
$                    .
	 
	 	4.	 	The current Interest Period for each of the Loans subject to such Continuation
ends on                     , 200_.
	 
	 	5.	 	The duration of the new Interest Period for each of such Loans or portion
thereof subject to such Continuation is:





	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 month
	 
	 

	 	o
	 	2 months
	 
	 

	 	o
	 	3 months
	 
	 

	 	o
	 	6 months






C-1 









 






     The Borrowers hereby certify to the Agent and the Lenders that as of the date hereof, as of
the proposed date of the requested Continuation, and after giving effect to such Continuation, no
Default or Event of Default exists or will exist.



     If notice of the requested Continuation was given previously by telephone, this notice is to
be considered the written confirmation of such telephone notice required by Section 2.8. of the
Credit Agreement.



     IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	LEXINGTON REALTY TRUST, as Borrower  
	 	 	Representative on its own behalf and on behalf
	 	 	of the other Borrowers
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





C-2 









 





EXHIBIT D



FORM OF NOTICE OF CONVERSION




                    , 200_




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement dated as of February ___, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     Pursuant to Section 2.9 of the Credit Agreement, the Borrowers hereby request a Conversion of
a borrowing of Loans of one Type into Loans of another Type under the Credit Agreement, and in that
connection sets forth below the information relating to such Conversion as required by such Section
of the Credit Agreement:




	 	1.	 	The proposed date of such Conversion is                     , 200_.
	 
	 	2.	 	The Loans to be Converted pursuant hereto are currently:





	 	 	 	 	 
	[Check one box only]

	 	o
	 	Base Rate Loans
	 
	 

	 	o
	 	LIBOR Loans







	 	3.	 	The aggregate principal amount of Loans subject to the requested Conversion is
$                     and was originally borrowed by the Borrowers on                     ,
200_.
	 
	 	4.	 	The portion of such principal amount subject to such Conversion is
$                    .
	 
	 	5.	 	The amount of such Loans to be so Converted is to be converted into Loans of
the following Type:





D-1 









 




[Check one box only]



     o Base Rate Loans



     o LIBOR Loans, each with an initial Interest Period for a duration of:




	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 months
	 
	 

	 	o
	 	2 months
	 
	 

	 	o
	 	3 months
	 
	 

	 	o
	 	6 months






     The Borrowers hereby certify to the Agent and the Lenders that as of the date hereof and as of
the date of the requested Conversion and after giving effect thereto, (a) no Default or Event of
Default exists or will exist (provided the certification under this clause (a) shall not be made in
connection with the Conversion of a Loan into a Base Rate Loan), and (b) the representations and
warranties made or deemed made by the Borrowers and each other Loan Party in the Loan Documents to
which any of them is a party are and shall be true and correct in all material respects, except to
the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents.



     If notice of the requested Conversion was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section 2.9 of the Credit
Agreement.



     IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Conversion
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	LEXINGTON REALTY TRUST, as Borrower  
	 	 	Representative on its own behalf and on behalf of
	 	 	the other Borrowers
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





D-2 









 





EXHIBIT E




FORM OF NOTE




			
	 	 	 
	$                               
	 	February ___, 2009






     FOR VALUE RECEIVED, each of the undersigned, LEXINGTON REALTY TRUST, a real estate investment
trust formed under the laws of the State of Maryland (the “Trust”), LEPERCQ CORPORATE INCOME FUND
L.P., a limited partnership formed under the laws of the State of Delaware (“LCIF”), LEPERCQ
CORPORATE INCOME FUND II L.P., a limited partnership formed under the laws of the State of Delaware
(“LCIFII”), and NET 3 ACQUISITION L.P., a limited partnership formed under the laws of the State of
Delaware (“Net 3”; collectively with the Trust, Net 3, LCIF and LCIFII, the “Borrowers” and each a
“Borrower”), hereby jointly and severally promises to pay to the order of                      (the
“Lender”), in care of KeyBank National Association, as Agent (the “Agent”) at KeyBank National
Association, as Agent (the “Agent”) at KeyBank, National Association, 225 Franklin street, Boston,
Massachusetts 02110, or at such other address as may be specified in writing by the Agent to the
Borrowers, the principal sum of                      AND ___/100 DOLLARS ($                    ) (or such
lesser amount as shall equal the aggregate unpaid principal amount of Loans made by the Lender to
the Borrowers under the Credit Agreement (as herein defined)), on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount owing
hereunder, at the rates and on the dates provided in the Credit Agreement.



     The date and amount of each Loan made by the Lender to the Borrowers, and each payment made on
account of the principal thereof, shall be recorded by the Lender on its books and, prior to any
transfer of this Note, endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrowers to make a payment when due of any amount owing under
the Credit Agreement or hereunder.



     This Note is one of the Notes referred to in the Credit Agreement dated as of February ___,
2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrowers, the financial institutions party thereto and their
assignees under Section 12.5 thereof (the “Lenders”), the Agent, and the other parties thereto.
Capitalized terms used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.



     The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
therein.



E-1 









 





     Except as permitted by Section 12.5(d) of the Credit Agreement, this Note may not be assigned
by the Lender to any Person.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



     The Borrowers hereby waive presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices.



     Time is of the essence for this Note.



     THE OBLIGATIONS OF THE BORROWERS UNDER THIS NOTE SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY,
EACH BORROWER CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE OBLIGATIONS OF EACH OF THE
OTHER BORROWERS HEREUNDER.



E-2 









 





     IN WITNESS WHEREOF, the undersigned has executed and delivered this Note under seal as of the
date first written above.



	 	 	 	 	 	 	 
	 	 	LEXINGTON REALTY TRUST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre	 	 
	 

	 	 	 	Title: Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	LEPERCQ CORPORATE INCOME FUND L.P.	 	 
	 
	 	 	LEPERCQ CORPORATE INCOME FUND II L.P.	 	 
	 
	 	 	NET 3 ACQUISITION L.P.	 	 
	 
	 	 	Each By: LEX GP-1 Trust, its sole general partner	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






E-3 









 





SCHEDULE OF LOANS




     This Note evidences Loans made under the within-described Credit Agreement to the Borrowers,
on the dates and in the principal amounts set forth below, subject to the payments and prepayments
of principal set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal 	 	 	Amount	 	 	Unpaid 	 	 	 	 
	Date of	 	Amount of	 	 	Paid or	 	 	Principal	 	 	Notation	 
	Loan	 	Loan	 	 	Prepaid	 	 	Amount	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






E-4 












 





EXHIBIT F


FORM OF OPINION OF COUNSEL




[LETTERHEAD OF COUNSEL TO THE LOAN PARTIES]




February             , 2009




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




The Lenders party to the Credit Agreement referred to below




Ladies and Gentlemen:




     We have acted as counsel to Lexington Realty Trust, a real estate investment trust formed
under the laws of the State of Maryland (the “Trust”), Lepercq Corporate Income Fund L.P., a
limited partnership formed under the laws of the State of Delaware (“LCIF”), Lepercq Corporate
Income Fund II L.P., a limited partnership formed under the laws of the State of Delaware
(“LCIFII”) and Net 3 Acquisition L.P., a limited partnership formed under the laws of the State of
Delaware (“Net 3”; collectively with the Trust, Lexington, LCIF and LCIFII, the “Borrowers” and
each a “Borrower”), in connection with the negotiation, execution and delivery of that certain
Credit Agreement dated as of February ___, 2009 (the “Credit Agreement”), by and among the
Borrowers, the financial institutions party thereto and their assignees under Section 12.5 thereof
(the “Lenders”), KeyBank National Association, as Agent (the “Agent”), and the other parties
thereto. We have also acted as counsel to each of the Guarantors listed on Schedule 1 attached
hereto (the “Guarantors”; together with the Borrowers, the “Loan Parties”), in connection with the
Guaranty and the other Loan Documents identified below to which they are party. Capitalized terms
not otherwise defined herein have the respective meaning given them in the Credit Agreement.



     In these capacities, we have reviewed executed copies of the following:



     (a) the Credit Agreement;



     (b) the Notes;



     (c) the Guaranty; and



     (d) [list other applicable Loan Documents].



F-1









 




The documents and instruments set forth in items (a) through (d) above are referred to herein as
the “Loan Documents”.




     In addition to the foregoing, we have reviewed the [articles or certificate of incorporation,
by-laws, declaration of trust, partnership agreement and limited liability company operating
agreement, as applicable,] of each Loan Party and certain resolutions of the board of trustees or
directors, as applicable, of each Loan Party (collectively, the “Organizational Documents”) and
have also examined originals or copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, and other instruments, and made such other investigations of law
and fact, as we have deemed necessary or advisable for the purposes of rendering this opinion. In
our examination of documents, we assumed the genuineness of all signatures on documents presented
to us as originals (other than the signatures of officers of the Loan Parties) and the conformity
to originals of documents presented to us as conformed or reproduced copies.



     Based upon the foregoing, and subject to all of the qualifications and assumptions set forth
herein, we are of the opinion that:



     1. Each Loan Party is a [corporation, trust, partnership or limited liability company, as
applicable,] duly organized or formed, validly existing and in good standing under the laws of the
State of its organization or formation and has the power to execute and deliver, and to perform its
obligations under, the Loan Documents to which it is a party, to own and use its assets, and to
conduct its business as presently conducted. Each Loan Party is qualified to transact business as
a foreign [corporation, trust, partnership or limited liability company, as applicable,] in the
indicated jurisdictions set forth on Schedule I attached hereto.



     2. Each Loan Party has duly authorized the execution and delivery of the Loan Documents to
which it is a party and the performance by such Loan Party of all of its obligations under each
such Loan Document.



     3. Each Loan Party has duly executed and delivered the Loan Documents to which it is a party.



     4. Each Loan Document is a valid and binding obligation of each Loan Party which is a party
thereto, enforceable against each such Loan Party in accordance with its terms, except as such
enforceability may be limited by: (a) applicable bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws relating to or affecting the enforcement of creditors’
rights generally and (b) the fact that equitable remedies or relief (including, but not limited to,
the remedy of specific performance) are subject to the discretion of the court before which any
such remedies or relief may be sought.



     5. The execution and delivery by each Loan Party of the Loan Documents to which it is a party
do not, and if each Loan Party were now to perform its obligations under such Loan Documents, such
performance would not, result in any:




     (a) violation of such Loan Party’s Organizational Documents;




     (b) violation of any existing federal or state constitution, statute, regulation, rule,
order, or law to which such Loan Party or its assets are subject;



F-2









 






     (c) breach or violation of or default under, any agreement, instrument, indenture or
other document evidencing any indebtedness for money borrowed or any other material
agreement to which, to our knowledge, such Loan Party is bound or under which a Loan Party
or its assets is subject;




     (d) creation or imposition of a lien or security interest in, on or against the assets
of such Loan Party under any agreement, instrument, indenture or other document evidencing
any indebtedness for money borrowed or any other material agreement to which, to our
knowledge, such Loan Party is bound or under which a Loan Party or its assets is subject; or




     (e) violation of any judicial or administrative decree, writ, judgment or order to
which, to our knowledge, such Loan Party or its assets are subject.



     6. The execution, delivery and performance by each Loan Party of each Loan Document to which
it is a party, and the consummation of the transactions thereunder, do not and will not require any
registration with, consent or approval of, or notice to, or other action to, with or by, any
Governmental Authority of the United States of America or the States of                                         ,                              
            or
                                        .



     7. To our knowledge, there are no judgments outstanding against any of the Loan Parties or
affecting any of their respective assets, nor is there any litigation or other proceeding against
any of the Loan Parties or its assets pending or overtly threatened, could reasonably be expected
to have a materially adverse effect on (a) the business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects of any Borrower or any other Loan Party
or (b) the validity or enforceability of any of the Loan Documents.



     8. None of the Loan Parties is, or, after giving effect to any Loan will be, subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or to any federal or state statute or regulation limiting its
ability to incur indebtedness for borrowed money.



     9. Assuming that the Borrowers apply the proceeds of the Loans as provided in the Credit
Agreement, the transactions contemplated by the Loan Documents do not violate the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System of the United States
of America.



     10. The consideration to be paid to the Agent and the Lenders for the financial accommodations
to be provided to the Loan Parties pursuant to the Credit Agreement does not violate any law of the
States of New York or                                          relating to interest and usury.




     This opinion is limited to the laws of the States of                                         ,
                     and
                                         and the federal laws of the United States of America, and we express no opinions with
respect to the law of any other jurisdiction.



     [Other Customary Qualifications/Assumptions/Limitations]



F-3









 





     This opinion is furnished to you solely for your benefit in connection with the consummation
of the transactions contemplated by the Credit Agreement and may not be relied upon by any other
Person, other than an Assignee of a Lender, or for any other purpose without our express, prior
written consent.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF LAW FIRM]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	,	 
	 	 	a Partner	 	 






F-4









 





SCHEDULE 1




Guarantors




	 	 	 	 	 	 	 	 	 
	 
	 	Name	 	 	Jurisdiction of Formation	 	 	Jurisdictions of Foreign Qualification	 
	 	 

	 	 	 
	 	 	 	 
	 	 
	 	 	 	 	 	 	 
	 	 

	 	 	 
	 	 	 	 
	 





F-5









 





EXHIBIT G




FORM OF COMPLIANCE CERTIFICATE




                                           , 200            




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement dated as of February ___, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     Pursuant to Section 8.3 of the Credit Agreement, the undersigned hereby certifies to the Agent
and the Lenders as follows:



     (1) The undersigned is
the                                                              of the Trust.



     (2) The undersigned has examined the books and records of the Trust and has conducted such
other examinations and investigations as are reasonably necessary to provide this Compliance
Certificate.



     (3) To the best of the undersigned’s knowledge, information and belief after due inquiry, no
Default or Event of Default exists [if such is not the case, specify such Default or Event of
Default and its nature, when it occurred and whether it is continuing and the steps being taken by
the Borrowers with respect to such event, condition or failure].



     (4) The representations and warranties made or deemed made by the Borrowers and the other Loan
Parties in the Loan Documents to which any is a party, are true and correct in all material
respects on and as of the date hereof except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents.



G-1









 





     (5) Attached hereto as Schedule 1 are reasonably detailed calculations establishing whether or
not the Trust and its Subsidiaries were in compliance with the covenants contained in Sections 9.1,
9.2. and 9.4 of the Credit Agreement.



     (6) Attached hereto as Schedule 2 are reasonably detailed calculations establishing
calculation of Borrowing Base Availability under the Credit Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first above
written.



	 	 	 	 	 	 
	 	 	 	
	 

	 	Name:	 	 	
	 

	 	 	 	 	
	 

	 	Title:	 	 	
	 

	 	 	 	 	





G-2









 





Schedule 1




[Calculations to be Attached]




G-3









 





Schedule 2




[Calculations to be Attached]




G-4









 





EXHIBIT H




FORM OF GUARANTY




GUARANTY




     GUARANTY, dated as of February ___, 2009 (the “Guaranty”), by each of the undersigned GUARANTY
PARTIES listed on Exhibit A attached hereto (jointly, severally and collectively, the
“Guarantors”), in favor of KEYBANK NATIONAL ASSOCIATION, a national banking association having an
address at 225 Franklin Street, Boston, Massachusetts 02110, as administrative agent (KeyBank
National Association, in such capacity as administrative agent, hereinafter referred to as
“Administrative Agent”) for a syndicate of lenders (singly and collectively, the “Lenders”) as
specifically provided in the Loan Agreement (as defined below).



INTRODUCTORY STATEMENT




     WHEREAS, pursuant to that certain Credit Agreement dated as of February ___, 2009 (as same may
be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”)
entered into by and among (i) Lexington Realty Trust (“LRT”), a real estate investment trust
organized under the laws of the State of Maryland, (ii) Lepercq Corporate Income Fund L.P.
(“LCIF”), Lepercq Corporate Income Fund II L.P. (“LCIFII”), and Net 3 Acquisition L.P. (“NET”),
each a Delaware limited partnership (together with LRT, jointly, severally and collectively, the
“Borrower”), (iii) the Administrative Agent, and (iv) the Lenders, the Administrative Agent and the
Lenders may make loans to the Borrower up to the aggregate principal amount of $500,000,000.00 (the
“Loan”) upon the terms and subject to the conditions set forth therein. Capitalized terms used
herein and not otherwise defined herein, but defined in the Loan Agreement, shall have the meaning
set forth in the Loan Agreement.



     WHEREAS, the Guarantors have substantial financial dealings with certain of the Borrowers and
are affiliated with certain of the Borrowers (either by ownership, contractual relationship,
employment or other meaningful business relationship), and the lending of money and other
extensions of the Obligations by the Administrative Agent and the Lenders to the Borrower will
enhance and benefit the business activities and interests of the Guarantors.



     WHEREAS, as a condition to making the Loans, the Administrative Agent and the Lenders have
required the Guarantors to execute and deliver this Guaranty, guaranteeing the payment and
performance of all Obligations arising under or pursuant to the Loan Agreement.



     WHEREAS, the Guarantors have executed and delivered certain Security Documents (as
applicable), each dated as of the date hereof, in favor of the Administrative Agent, for its own
benefit and the benefit of the other Lenders to secure the Guarantors’ obligations hereunder.



     NOW THEREFORE, in consideration of the premises and in order to induce the Administrative
Agent and the Lenders to make the Loans and extend other financial accommodations under the Loan
Agreement, the Guarantors hereby agree as follows:



H-1









 





     Section 1. Guaranty. Each of the Guarantors hereby irrevocably and unconditionally
guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as
a surety, the punctual payment when due, whether at stated maturity, after maturity, by
acceleration or otherwise, and the punctual performance, of all present and future Obligations of
the Borrower under the Loan Agreement and each other Loan Document, each as the same may be
hereafter amended, modified, extended, renewed or recast, together with interest and other charges
thereon, as provided in the Loan Agreement and the Note executed thereunder (the foregoing being
herein referred to as the “Guaranteed Obligations”).



     Section 2. Waiver. Each of the Guarantors hereby absolutely, unconditionally and irrevocably
waives, to the fullest extent permitted by law, (a) promptness, diligence, notice of acceptance and
any other notice with respect to this Guaranty, (b) presentment, demand of payment, protest, notice
of dishonor or nonpayment and any other notice with respect to the Guaranteed Obligations, (c) any
requirement that the Administrative Agent protect, secure, perfect or insure any security interest
or Lien on any property subject thereto or exhaust any right or take any action against the
Borrower or any other Person or any collateral (other than the Collateral pledged to the
Administrative Agent, for its own benefit and the benefit of the other Lenders, pursuant to the
Security Documents (as applicable)), (d) any and all right to assert any defense (other than the
defense of indefeasible payment), set off, counterclaim or cross claim of any nature whatsoever
with respect to this Guaranty (except as otherwise provided in Section 20(a)(iii) hereof), the
obligations of each Guarantor hereunder or the obligations of any other person or party relating to
this Guaranty or the obligations of each Guarantor hereunder or otherwise with respect to the
Guaranteed Obligations in any action or proceeding brought by the Administrative Agent to collect
the Guaranteed Obligations or any portion thereof or to enforce the obligations of each Guarantor
under this Guaranty, and (e) any other action, event or precondition to the enforcement of this
Guaranty or the performance by each Guarantor of its obligations hereunder.



     Section 3. Guaranty Absolute.



     (a) Each of the Guarantors guarantees that, to the fullest extent permitted by law, the
Guaranteed Obligations will be paid or performed strictly in accordance with their terms,
regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Administrative Agent with respect thereto.



     (b) No invalidity, irregularity, voidability, voidness or unenforceability of the Loan
Agreement, the Note, or any other Loan Document or any other agreement or instrument relating
thereto, or of all or any part of the Guaranteed Obligations or of any security therefor shall
affect, impair or be a defense to this Guaranty.



     (c) This Guaranty is one of payment and performance, not collection, and the obligations of
each Guarantor under this Guaranty are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against each or any Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the Borrower or any Affiliate or
Subsidiary thereof or whether the Borrower or any Affiliate or Subsidiary thereof is joined in any
such action or actions.



H-2









 





     (d) The liability of each Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:



     (i) any change in the manner, place or terms of payment or performance, and/or any change or
extension of the time of payment or performance of, renewal or alteration of, any Guaranteed
Obligation, any security therefor, or any liability incurred directly or indirectly in respect
thereof, or any other amendment or waiver of or any consent to departure from the Loan Agreement or
the Note or any other Loan Document, including any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or any Subsidiary or Affiliate
thereof or otherwise;



     (ii) any sale, exchange, release, surrender, realization upon any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, all or any of the Guaranteed
Obligations (other than the Collateral pledged to the Administrative Agent, for its own benefit and
the benefit of the other Lenders, under the Security Documents (as applicable)), and/or any offset
against such Guaranteed Obligations, or failure to perfect, or continue the perfection of, any Lien
in any such property, or delay in the perfection of any such Lien, or any amendment or waiver of or
consent to departure from any other guaranty for all or any of the Guaranteed Obligations;



     (iii) any exercise or failure to exercise any rights against the Borrower or any Affiliate or
Subsidiary thereof or others (including any Guarantor);



     (iv) any settlement or compromise of any Guaranteed Obligation, any security therefor or any
liability (including any of those hereunder) incurred directly or indirectly in respect thereof or
hereof;



     (v) any manner of application of Collateral, or proceeds thereof, to all or any of the
Guaranteed Obligations, or any manner of sale or other disposition of any Collateral for all or any
of the Guaranteed Obligations or any other assets of the Borrower or any Affiliate or Subsidiary
thereof;



     (vi) any change, restructuring or termination of the existence of the Borrower or any
Affiliate or Subsidiary thereof;



     (vii) the release of the Borrower or any other party, other than any Guarantor, now or
hereafter liable upon or in respect of the Loan Documents; or



     (viii) any other agreements or circumstance of any nature whatsoever which might otherwise
constitute a defense available to, or a discharge of, this Guaranty and/or the obligations of any
Guarantor hereunder, or a defense to, or discharge of, the Borrower or any Affiliate or Subsidiary
thereof relating to this Guaranty or the obligations of any Guarantor hereunder or otherwise with
respect to the Loan or other financial accommodations to the Borrower (other than the defense of
indefeasible payment).



     (e) The Administrative Agent may at any time and from time to time (whether or not after
revocation or termination of this Guaranty) without the consent of, or notice (except as shall be
required by applicable statute and cannot be waived) to, the Guarantors, and without incurring



H-3









 







responsibility to the Guarantors or impairing or releasing the obligations of any Guarantor
hereunder, apply any sums by whomsoever paid or howsoever realized to any Guaranteed Obligation
regardless of what Guaranteed Obligations remain unpaid.



     (f) This Guaranty shall continue to be effective or be reinstated, as the case may be, if
claim is ever made upon the Administrative Agent for repayment or recovery of any amount or amounts
received by the Administrative Agent in payment or on account of any of the Guaranteed Obligations
as a result of laws relating to preferences, fraudulent transfers and fraudulent conveyances, and
the Administrative Agent repays all or part of said amount by reason of any judgment, decree or
order of any court or administrative body having jurisdiction over the Administrative Agent or its
property, or any settlement or compromise of any such claim effected by the Administrative Agent
with any such claimant (including LRT, LCIF, LCIFII and NET). In such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding upon such
Guarantor, notwithstanding any revocation hereof or the cancellation of any note (including the
Note) or other instrument evidencing any Guaranteed Obligation, and each Guarantor shall be and
remain liable to the Administrative Agent hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by the Administrative Agent.



     Section 4. Continuing Guaranty. This Guaranty is a continuing one and shall (a) remain in full
force and effect until the indefeasible payment and satisfaction in full of the Guaranteed
Obligations, (b) be binding upon each Guarantor, its successors and assigns, and (c) inure to the
benefit of, and be enforceable by, the Administrative Agent and the Lenders. All obligations to
which this Guaranty applies shall be conclusively presumed to have been created in reliance hereon.



     Section 5. Representations, Warranties and Covenants. Each of the Guarantors hereby
represents, warrants and covenants to and with the Administrative Agent and the Lenders that:



     (a) Each Guarantor has the power to execute and deliver this Guaranty and to incur and perform
its obligations hereunder;



     (b) Each Guarantor has duly taken all necessary action to authorize the execution, delivery
and performance of this Guaranty and to incur and perform its obligations hereunder;



     (c) No consent, approval, authorization or other action by, and no notice to or of, or
declaration or filing with, any governmental or other public body, or any other Person, is required
for the due authorization, execution, delivery and performance by any Guarantor of this Guaranty or
the consummation of the transactions contemplated hereby;



     (d) The execution, delivery and performance by each Guarantor of this Guaranty does not and
will not, with the passage of time or the giving of notice or both, violate or otherwise conflict
with any term or provision of any material agreement, instrument, judgment, decree, order or any
statute, rule or governmental regulation applicable to such Guarantor or result in the creation of
any Lien upon any of its properties or assets pursuant thereto;



H-4









 





     (e) This Guaranty has been duly authorized, executed and delivered by each Guarantor and
constitutes the legal, valid and binding obligation of each Guarantor, and is enforceable against
each Guarantor in accordance with its terms, except as enforcement thereof may be subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally, and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law); and



     (f) The granting of the Loan to the Borrower will constitute a material economic benefit to
each Guarantor.



     Section 6. Affirmative Covenants. Each of the Guarantors covenants and agrees that, from the
date hereof and so long as the Loan or the other Guaranteed Obligations remain outstanding, each
such Guarantor shall pay, perform, observe and otherwise comply with (a) all of the affirmative
covenants set forth in the Loan Agreement that have been made by the Borrower therein with respect
to the Subsidiaries or the Loan Parties, but only to the extent that such covenants were made with
respect to such Guarantor, and (b) all of the affirmative covenants set forth in the Consent
executed and delivered by the Guarantors.



     Section 7. Negative Covenants. Each of the Guarantors covenants and agrees that, from the
date hereof and so long as the Loan or the other Guaranteed Obligations remain outstanding, no
Guarantor shall take any action (or otherwise suffer or permit to occur any event) contrary to (a)
the negative covenants set forth in the Loan Agreement, as agreed by the Borrower therein with
respect to the Subsidiaries or the Loan Parties, but only to the extent that such covenants were
made with respect to such Guarantor, or (b) the negative covenants set forth in the Consent
executed and delivered by the Guarantors. Without limiting the generality of the foregoing, each
of the Guarantors covenants and agrees that, from the date hereof and so long as the Loan or the
other Guaranteed Obligations remain outstanding, no Guarantor no Guarantor shall take any action
(or otherwise suffer or permit to occur any event) contrary to the negative covenants set forth in
the Loan Agreement.



     Section 8. Expenses. The Guarantors will, upon demand, reimburse the Administrative Agent for
any sums, costs, and expenses which the Administrative Agent and/or the Lenders may pay or incur
pursuant to the provisions of this Guaranty or in enforcing this Guaranty or in enforcing payment
of the Guaranteed Obligations or otherwise in connection with the provisions hereof, including
court costs, collection charges, and reasonable attorneys’ fees, together with interest thereon as
specified in Section 15 hereof.



     Section 9. Terms.



     (a) All terms defined in the Uniform Commercial Code of The State of New York (as amended and
in effect from time to time, the “UCC”) and used herein shall have the meanings as defined in the
UCC, unless the context otherwise requires.



     (b) The words “include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”.



     (c) All references herein to Sections and subsections shall be deemed to be references to
Sections and subsections of this Guaranty unless the context shall otherwise require.



H-5









 





     Section 10. Amendments and Modification. No provision hereof shall be modified, altered or
limited except by written instrument expressly referring to this Guaranty and to such provision,
and executed by the party to be charged.



     Section 11. Waiver of Subrogation Rights. Until such time as all the Guaranteed Obligations
have been indefeasibly satisfied (including the expiration of any applicable voidable preference
period under the federal bankruptcy laws), each of the Guarantors hereby waives and releases any
and all rights and claims it may now or hereafter have or acquire against the Borrower that would
constitute it a “creditor” of the Borrower for purposes of the federal bankruptcy laws, including
all rights of subrogation against the Borrower and its property and all rights of indemnification,
contribution and reimbursement from the Borrower and its property, regardless of whether such
rights arise in connection with this Guaranty, by operation of law, pursuant to contract or
otherwise.



     Section 12. Remedies Upon Default.



     (a) Upon the occurrence and during the continuance of any Event of Default, in addition to any
other rights and remedies which the Administrative Agent and/or the Lenders may have hereunder or
at law, and not in limitation thereof, the Administrative Agent may, without notice to or demand
upon the Borrower or the Guarantors, declare any Guaranteed Obligations immediately due and
payable, and shall be entitled to enforce the obligations of the Guarantors hereunder.



     (b) The Administrative Agent’s rights under this Guaranty shall be in addition to, and not in
limitation of, all of the rights and remedies of the Administrative Agent and/or the Lenders under
the Loan Documents. All rights and remedies of the Administrative Agent and/or the Lenders shall
be cumulative and may be exercised in such manner and combination as the Administrative Agent
and/or the Lenders, respectively, may determine.



     Section 13. Set-Off. After the occurrence and during the continuance of any Event of Default,
any Accounts, deposits, balances or other sums credited by or due from the Administrative Agent,
any affiliate of the Administrative Agent, or any of the Lenders, or from any affiliate of any of
the Lenders, to any Guarantor may to the fullest extent not prohibited by applicable law at any
time or from time to time, without regard to the existence, sufficiency or adequacy of any other
collateral, and without notice or compliance with any other condition precedent now or hereafter
imposed by statute, rule of law or otherwise, all of which are hereby waived to the fullest extent
permitted by law, be set off, appropriated and applied by the Administrative Agent against any or
all of the Guaranteed Obligations irrespective of whether demand shall have been made, in such
manner as the Administrative Agent in its sole and absolute discretion may determine. Within three
(3) Business Days of making any such set off, appropriation or application, the Administrative
Agent agrees to notify the Guarantors thereof, provided the failure to give such notice shall not
affect the validity of such set off or appropriation or application. ANY AND ALL RIGHTS TO REQUIRE
THE ADMINISTRATIVE AGENT, THE DEPOSIT ACCOUNT CO-AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS
OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH ACCOUNTS, DEPOSITS, CREDITS OR OTHER



H-6









 







PROPERTY OF THE
GUARANTORS, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.



     Section 14. Statute of Limitations. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise and whether by the Borrower or others (including any Guarantor),
with respect to any of the Guaranteed Obligations shall, if the statute of limitations in favor of
the Guarantors against the Administrative Agent shall have commenced to run, toll the running of
such statute of limitations and, if the period of such statute of limitations shall have expired,
prevent the operation of such statute of limitations.



     Section 15. Interest. All amounts payable from time to time by the Guarantors hereunder shall
bear interest at the Default Rate, provided, that such interest shall not be duplicative of any
obligations payable under the Loan Agreement.



     Section 16. Rights and Remedies Not Waived. No act, omission or delay by the Administrative
Agent shall constitute a waiver of its rights and remedies hereunder or otherwise. No single or
partial waiver by the Administrative Agent of any default hereunder or right or remedy which it may
have shall operate as a waiver of any other default, right or remedy or of the same default, right
or remedy on a future occasion.



     Section 17. Admissibility of Guaranty. Each of the Guarantors agrees that any copy of this
Guaranty signed by the Guarantor and transmitted by telecopier for delivery to the Administrative
Agent shall be admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence.



     Section 18. Notices. All notices, requests and demands to or upon the Administrative Agent,
the Lenders or the Guarantors under this Guaranty shall be in writing and given as provided in the
Loan Agreement (and with respect to the Guarantors, c/o the Borrower at the address of the Borrower
as set forth in the Loan Agreement).



     Section 19. Counterparts. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original and all of which shall together constitute one and the same agreement.



     Section 20. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.



     (a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY SECURITY DOCUMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (i) TRIAL BY JURY, (ii) TO
THE EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED



H-7









 







ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (iii)
THE RIGHT TO IMPOSE ANY SET OFF, COUNTERCLAIM OR CROSS CLAIM UNLESS SUCH SET OFF, COUNTERCLAIM OR
CROSS CLAM COULD NOT, BY REASON OF ANY APPLICABLE FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED,
PLEADED OR ALLEGED IN ANY OTHER ACTION.



     (b) Each of the Guarantors irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies thereof by
certified mail, postage prepaid, to such Guarantor at its address determined pursuant to Section 18
hereof.



     (c) Nothing herein shall affect the right of the Administrative Agent to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise proceed against any
Guarantor in any other jurisdiction.



     (d) Each of the Guarantors hereby waives presentment, notice of dishonor and protests of all
instruments included in or evidencing any of the Guaranteed Obligations, and any and all other
notices and demands whatsoever (except as expressly provided herein).



     Section 21. GOVERNING LAW. THIS GUARANTY, THE SECURITY DOCUMENTS AND THE GUARANTEED
OBLIGATIONS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.



     Section 22. Captions; Separability.



     (a) The captions of the Sections and subsections of this Guaranty have been inserted for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Guaranty.



     (b) If any term of this Guaranty shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby.



     Section 23. Acknowledgment of Receipt. Each of the Guarantors acknowledges receipt of a copy
of this Guaranty and each of the Loan Documents.



     Section 24. Entire Agreement. This Guaranty sets forth the entire agreement and understanding
of the Administrative Agent, the Lenders and the Guarantors with respect to the matters covered
hereby and, by accepting this Guaranty, each of the Guarantors acknowledges that no oral or other
understanding, agreements, representations or warranties have been made and/or exist with respect
to the matters covered by this Guaranty or with respect to the obligations of the Guarantors
hereunder or otherwise, except as specifically set forth in this Guaranty.



[SIGNATURE PAGES FOLLOW]




H-8









 








     IN WITNESS WHEREOF, each of the Guarantors has duly executed or caused this Guaranty to be
duly executed in The State of New York as of the date first above set forth.



     GUARANTORS:



	 	 	 
	 

	 	NEWKIRK 21 AT GP LLC
	 

	 	NEWKIRK ALTENN GP LLC
	 

	 	NEWKIRK AVREM GP LLC
	 

	 	NEWKIRK BASOT GP LLC
	 

	 	NEWKIRK BEDCAR GP LLC
	 

	 	NEWKIRK CAROLION GP LLC
	 

	 	NEWKIRK CLIFMAR GP LLC
	 

	 	NEWKIRK DALHILL GP LLC
	 

	 	NEWKIRK ELWAY GP LLC
	 

	 	NEWKIRK GERSANT GP LLC
	 

	 	NEWKIRK JACWAY GP LLC
	 

	 	NEWKIRK JLE WAY GP LLC
	 

	 	NEWKIRK JOHAB GP LLC
	 

	 	NEWKIRK LANMAR GP LLC
	 

	 	NEWKIRK LIROC GP LLC
	 

	 	NEWKIRK ORPER GP LLC
	 

	 	NEWKIRK SABLEMART GP LLC
	 

	 	NEWKIRK SALISTOWN GP LLC
	 

	 	NEWKIRK SEGUINE GP LLC
	 

	 	NEWKIRK STATMONT GP LLC
	 

	 	NEWKIRK SUNWAY GP LLC
	 

	 	NEWKIRK SUPERWEST GP LLC
	 

	 	NEWKIRK WALANDO GP LLC
	 

	 	NEWKIRK WASHTEX GP LLC
	 

	 	NK-CINN HAMILTON PROPERTY MANAGER LLC
	 

	 	NK-LUMBERTON PROPERTY MANAGER LLC
	 

	 	NK-ODW/COLUMBUS PROPERTY MANAGER LLC
	 

	 	LEX GP HOLDING LLC
	 

	 	NEWKIRK MLP UNIT LLC
	 
	 	 
	 

	 	Each, a Delaware limited liability company
	 
	 	 
	 

	 	By:      MLP Manager Corp., their Manager






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Joseph Bonventre
	 

	 	Title:
	 	Senior Vice President






H-9









 






	 	 	 	 	 
	 
	 	 	 	 
	 	 	LEX-PROPERTY HOLDINGS LLC

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON HONOLULU MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON SOUTHFIELD LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON FORT STREET TRUSTEE LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON TOY TRUSTEE LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON FLORENCE MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President






H-10









 






	 	 	 	 	 
	 
	 	 	 	 
	 	 	LEXINGTON OLIVE BRANCH MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	WESTPORT VIEW CORPORATE CENTER L.P., 


a Delaware limited partnership
	 
	 	 	 	 
	 	 	By: Lexington Westport Manager LLC, its General Partner






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Joseph Bonventre
	 

	 	Title:
	 	Senior Vice President






	 	 	 	 	 
	 	 	LEXINGTON
COLLIERVILLE MANAGER LLC, 

a  Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEX GP-1 TRUST, 

a trust organized under the laws of the State of
Delaware
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON WESTPORT
MANAGER LLC, a 

Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON REALTY ADVISORS, INC.,


a  Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President






H-11









 






	 	 	 	 	 
	 
	 	 	 	 
	 	 	LEXINGTON WAXAHACHIE MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON LAC LENEXA GP LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	MLP UNIT PLEDGE GP LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 	 	By: Newkirk MLP Unit LLC, its Member
	 
	 	 	 	 
	 	 	By: MLP Manager Corp., its Manager






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Joseph Bonventre
	 

	 	Title:
	 	Senior Vice President






	 	 	 	 	 
	 	 	MLP UNIT PLEDGE L.P.,


a Delaware limited partnership
	 
	 	 	 	 
	 	 	By: MLP Unit Pledge GP LLC, its General Partner






	 	 	 	 	 
	 	 	By: Newkirk MLP Unit LLC, its Member






	 	 	 	 	 
	 	 	By: MLP Manager Corp., its Manager






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President






H-12









 






	 	 	 	 	 
	 	 	LEXINGTON DUNCAN MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEXINGTON MLP WESTERVILLE MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LXP I TRUST,


a trust organized under the laws of the State of
Delaware
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LXP I, L.P., 


a Delaware limited partnership
	 
	 	 	 	 
	 	 	By: LXP I Trust, its General Partner






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre
	 

	 	 	 	Title: Senior Vice President






	 	 	 	 	 
	 	 	LSAC CROSSVILLE MANAGER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name: Joseph Bonventre
	 	 	Title: Senior Vice President






H-13









 






	 	 	 	 	 
	 	 	LSAC OPERATING PARTNERSHIP L.P., 

a Delaware limited partnership
	 
	 	 	 	 
	 	 	By: LSAC General Partner LLC, its General Partner






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre
	 

	 	 	 	Title: Senior Vice President






	 	 	 	 	 
	 	 	LSAC GENERAL PARTNER LLC,

a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre
	 

	 	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	LEX LP-1 TRUST, 


a trust organized under the laws of the State of
Delaware
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Joseph Bonventre
	 

	 	 	 	Title: Senior Vice President






H-14









 





Exhibit A




Guaranty Parties





	1.	 	Newkirk 21 AT GP LLC
	 
	2.	 	Newkirk Altenn GP LLC
	 
	3.	 	Newkirk Avrem GP LLC
	 
	4.	 	Newkirk Basot GP LLC
	 
	5.	 	Newkirk Bedcar GP LLC
	 
	6.	 	Newkirk Carolion GP LLC
	 
	7.	 	Newkirk Clifmar GP LLC
	 
	8.	 	Newkirk Dalhill GP LLC
	 
	9.	 	Newkirk Elway GP LLC
	 
	10.	 	Newkirk Gersant GP LLC
	 
	11.	 	Newkirk Jacway GP LLC
	 
	12.	 	Newkirk JLE Way GP LLC
	 
	13.	 	Newkirk Johab GP LLC
	 
	14.	 	Newkirk Lanmar GP LLC
	 
	15.	 	Newkirk Liroc GP LLC
	 
	16.	 	Newkirk Orper GP LLC
	 
	17.	 	Newkirk Sablemart GP LLC
	 
	18.	 	Newkirk Salistown GP LLC
	 
	19.	 	Newkirk Seguine GP LLC
	 
	20.	 	Newkirk Statmont GP LLC
	 
	21.	 	Newkirk Sunway GP LLC
	 
	22.	 	Newkirk Superwest GP LLC




H-15









 






	23.	 	Newkirk Walando GP LLC
	 
	24.	 	Newkirk Washtex GP LLC
	 
	25.	 	NK-CINN Hamilton Property Manager LLC
	 
	26.	 	NK-Lumberton Property Manager LLC
	 
	27.	 	NK-ODW/Columbus Property Manager LLC
	 
	28.	 	Lex GP Holding LLC
	 
	29.	 	Lex-Property Holdings LLC
	 
	30.	 	Lexington Honolulu Manager LLC
	 
	31.	 	Lexington Southfield LLC
	 
	32.	 	Lexington Fort Street Trustee LLC
	 
	33.	 	Lexington Toy Trustee LLC
	 
	34.	 	Lexington Florence Manager LLC
	 
	35.	 	Lexington Olive Branch Manager LLC
	 
	36.	 	Westport View Corporate Center L.P.
	 
	37.	 	Lexington Collierville Manager LLC
	 
	38.	 	Lex GP-1 Trust
	 
	39.	 	Lexington Westport Manager LLC
	 
	40.	 	Lexington Realty Advisors, Inc.
	 
	41.	 	Lexington Waxahachie Manager LLC
	 
	42.	 	Lexington LAC Lenexa GP LLC
	 
	43.	 	Newkirk MLP Unit LLC
	 
	44.	 	MLP Unit Pledge L.P.
	 
	45.	 	MLP Unit Pledge GP LLC
	 
	46.	 	Lexington Duncan Manager LLC
	 
	47.	 	Lexington MLP Westerville Manager LLC




H-16









 






	48.	 	LXP I Trust
	 
	49.	 	LXP I, L.P.
	 
	50.	 	LSAC Crossville Manager LLC
	 
	51.	 	LSAC Operating Partnership L.P.
	 
	52.	 	LSAC General Partner LLC
	 
	53.	 	Lex LP-1 Trust





H-17









 










EXHIBIT I




FORM OF BORROWING BASE CERTIFICATE




                          
           , 200               




KeyBank, National Association, as Agent

225 Franklin Street

Boston, Massachusetts 02110

Attention: Jeffry M. Morrison




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement dated as of February ___, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Lexington Realty Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. (collectively, the “Borrowers”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     Pursuant to Section 2.1(b) and Section 2.2(b) of the Credit Agreement, the undersigned hereby
certifies to the Agent and the Lenders as follows:



     (1) The undersigned is the                                          of the Trust.



     (2) The undersigned has examined the books and records of the Trust and has conducted such
other examinations and investigations as are reasonably necessary to provide this Compliance
Certificate.



     (3) To the best of the undersigned’s knowledge, information and belief after due inquiry, no
Default or Event of Default exists [if such is not the case, specify such Default or Event of
Default and its nature, when it occurred and whether it is continuing and the steps being taken by
the Borrowers with respect to such event, condition or failure].



     (4) The representations and warranties made or deemed made by the Borrowers and the other Loan
Parties in the Loan Documents to which any is a party, are true and correct in all material
respects on and as of the date hereof except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents.



     (5) Attached hereto as Schedule 1 are reasonably detailed calculations establishing
calculation of Borrowing Base Availability under the Credit Agreement.



I-1









 





     IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first above
written.



	 	 	 	 	 	 
	 

	 	 	 	 	
	 	 	 	 	 	
	 

	 	Name:	 	 	
	 

	 	 	 	 	
	 

	 	Title:	 	 	
	 

	 	 	 	 	





I-2









 






Schedule 1




[Calculations to be Attached]




I-3









 





EXHIBIT J




ELIGIBLE PROPERTIES



As long as the Commitments are outstanding or there remain any Obligations to be paid or performed
under the Credit Agreement or under any other Loan Document, the Borrowers represent and warrant
that as to each Property:




     1. A Property Subsidiary is the sole legal and equitable owner in fee simple of the Property
or a lessee under a valid ground lease of the Property or a holder of a valid estate for years in
respect the Property, free and clear of all Liens or any ownership interest of any other Person,
has full right, power and authority to own, lease or hold the Property, and all consents required
to transfer ownership of, or leasehold or estate rights in, the Property to the Property
Subsidiary have been obtained.



     2. The Borrowers have conducted their customary due diligence and review with respect to the
Property, including inspection of the Property, and such customary due diligence and review have
not revealed facts that would adversely affect the value of the Property.



     3. The Borrowers have complied with all applicable conditions set forth in the Credit
Agreement to the inclusion and retention of the Property in the Borrowing Base Assets Pool.



     4. The Property complies with all Environmental Laws except where the failure to comply would
not have a Material Adverse Effect and is free of any material structural defect.



     5. The Property is located in one of the states of the United States or the District of
Columbia.



     6. The Property is a commercial office, retail or industrial property or a mixed-use
property.



     7. All real estate taxes and governmental assessments, or installments thereof, which would
be a lien on the Property and that have become delinquent in respect of the Property have been
paid or an escrow of funds in an amount sufficient to cover such payments has been established.



     8. One or more engineering assessments were performed and prepared by an independent
engineering consultant firm prior to the acquisition of the Property by the Borrowers or one of
their Affiliates, and, except as set forth in an engineering report prepared in connection with
such assessment, a copy of which has been delivered to the Borrowers, the Property is, to the
Borrowers’ knowledge, in good repair, free and clear of any damage that would materially and
adversely affect its value.



J-1









 





     9. There is no proceeding pending, and neither the Borrowers nor any of their Subsidiaries or
Affiliates have received notice of any pending or threatening proceeding for the condemnation of
all or any material portion of the Property.



     10. The Borrowers have received an owner’s title insurance policy, in ALTA form or
equivalent, (or if such policy has not yet been issued, such insurance may be evidenced by escrow
instructions, a “marked up” pro forma or specimen policy or title commitment, in either case,
marked as binding and countersigned by the title insurer or its authorized agent at the closing of
the related acquisition) as adopted in the applicable jurisdiction (the “Title Insurance Policy”),
which to the knowledge of the Borrowers, was issued by a recognized title insurance company
qualified to do business in the jurisdiction where the Property is located and neither the
Borrowers nor any of their Subsidiaries or Affiliates have done, by act or omission, and the
Borrowers have no knowledge of, anything that would impair the coverage under such Title Insurance
Policy. Such Title Insurance Policy has been issued for the benefit of the Borrowers or the
applicable Property Subsidiary, and contains no material exclusions for, or affirmatively insures
against any losses arising from (other than in jurisdictions in which affirmative insurance is
unavailable) (a) failure to have access to a public road, and (b) material encroachments of any
part of the building thereon over easements.



     11. The Property is covered by (a) a fire and extended perils included within the
classification “All Risk of Physical Loss” insurance policy in an amount (subject to a customary
deductible) equal to the replacement cost of improvements (excluding foundations) located on the
Property, and in any event, the amount necessary to avoid the operation of any co-insurance
provisions; (b) business interruption or rental loss insurance in an amount at least equal to 12
months of operations of the Property; and (c) comprehensive general liability insurance against
claims for personal and bodily injury, death or property damage occurring on, in or about the
Property in an amount customarily, but not less than $1 million. All triple net lessees of any
Property located in seismic zone 3 or 4 are required to carry earthquake insurance if the Probable
Maximum Loss (“PML”) for such property would exceed 20% of the replacement cost of the insurance.
Such determination is the responsibility of the lessee. Earthquake insurance, if required, on the
Property must be obtained by an insurer rated at least “A-:V” (or the equivalent) by A.M. Best
Company or “BBB-” (or the equivalent) from S&P or “Baa3” (or the equivalent) from Moody’s. To the
Borrowers’ knowledge, the insurer with respect to each policy is qualified to write insurance in
the relevant jurisdiction to the extent required.



     12. To the knowledge of the Borrowers, there are no material violations of any applicable
zoning ordinances, building codes and land laws applicable to the Property or the use and
occupancy thereof which would have a material adverse effect on the value, operation or net
operating income of the Property.



     13. To the knowledge of the Borrowers, based solely on surveys and/or the title policy
referred to herein obtained in connection with the origination of each loan, either (i) none of
the material improvements which were included for the purposes of determining the appraised value
of the Property lies outside of the boundaries and building restriction lines of the property or
(ii) the Property is a legal non-conforming use, to an extent which would have a material adverse
affect on the value of the Property and no improvements on adjoining properties encroached upon
the Property to any material and adverse extent.



J-2









 





     14. To the knowledge of the Borrowers, there is no pending action, suit or proceeding,
arbitration or governmental investigation against the owner of or relating to any Property, an
adverse outcome of which could reasonably be expected to materially and adversely affect the value
or current use of such Property.



     15. The Property is either not located in a federally designated special flood hazard area
or, if so located, the Borrowers or the tenants or tenant maintain flood insurance with respect to
such improvements and such policy is in full force and effect in an amount no less than the lesser
of (i) the value of the Property located in such flood hazard area or (ii) the maximum allowed
under the related federal flood insurance program.



     16. The Property is treated as a real estate asset for purposes of Section 856(c) of the
Code, and the interest or other payments payable pursuant to such security is treated as interest
on an obligation secured by a mortgage on real property or on an interest in real property for
purposes of Section 856(c) of the Code.



     17. Under the terms of the documents relating to the Property, any related insurance proceeds
or condemnation award will be applied either to the principal amount outstanding under the loan or
to the repair or restoration of all or part of the Property (except in such cases where a
provision entitling another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) in an amount equal to the
greater of (x) the replacement costs for the Property or (y) the acquisition costs for the
Property (subject, in the case of condemnation awards, to the rights of the lessor in the Ground
Lease (as defined in Section 21 below)). As of the Closing Date, neither the Borrowers nor any of
their Subsidiaries or Affiliates has submitted a claim for the repair and restoration of the
Property following the occurrence of a material casualty event.



     18. In the case of a Property that constitutes an interest of a Property Subsidiary as a
lessee under a ground lease of a property (a “Ground Lease”) (the term Ground Lease shall
mean such ground lease, all written amendments and modifications, and any related estoppels or
agreements from the ground lessor), but not by the related fee interest in such property (the “Fee
Interest”), the following shall be true and correct:




     (a) There has been no material change in the term of such Ground Lease, the payment
terms under such Ground Lease or any renewal options under such Ground Lease since its
recordation;




     (b) Such Ground Lease is not subject to any liens or encumbrances; and




     (c) Such Ground Lease is in full force and effect, and no material default has occurred
under such Ground Lease as of the Closing Date.



     19. There is no mortgage, deed of trust or similar instrument encumbering the Property.



     20. The Property Subsidiary which owns the Property has no Indebtedness other than as
permitted under the Credit Agreement.



J-3









 





SPECIAL COVENANTS CONCERNING PROPERTIES



As long as the Commitments are outstanding or there remain any Obligations to be paid or performed
under the Credit Agreement or under any other Loan Document, the Borrowers, with respect to each
Property:





	 	(a)	 	shall defend the right, title and interest of the applicable Property
Subsidiary in and to the Property against the claims and demands of all Persons.
	 
	 	(b)	 	shall cause the Property to be managed in accordance with the
policies and procedures customary for assets of a type such as the Property.
	 
	 	(c)	 	shall review its policies and procedures periodically to confirm that
the policies and procedures are being complied with in all material respects and
are adequate to meet the Borrowers’ business objectives with respect to the
Property.




J-4









 











Schedules omitted from filing