AMENDED AND RESTATED CREDIT AGREEMENT

EXHIBIT 10.1

 

 

Published CUSIP Number:                                          

AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 29, 2007
among

COUSINS PROPERTIES INCORPORATED
as the Principal Borrower,

THE CONSOLIDATED ENTITIES OF THE BORROWER FROM TIME TO
TIME DESIGNATED BY THE BORROWER AS CO-BORROWERS
HEREUNDER,
collectively, with the Borrower, as the Borrower Parties

THE CONSOLIDATED ENTITIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO
as the Guarantors

BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,

BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager,

EUROHYPO AG, NEW YORK BRANCH ,
as Syndication Agent,

PNC BANK, NATIONAL ASSOCIATION, WACHOVIA BANK, NATIONAL
ASSOCIATION and WELLS FARGO BANK , NATIONAL ASSOCIATION,
as Documentation Agents,

NORDDEUTSCHE LANDESBANK GIROZENTRALE,
as Managing Agent,

AAREAL BANK AG , CHARTER ONE BANK, N.A. and REGIONS BANK ,
as Co-Agents,

and

THE OTHER LENDERS PARTY HERETO

 

 

TABLE OF CONTENTS

Section				Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS					1
1.01		Defined Terms			1
1.02		Other Interpretive Provisions			34
1.03		Accounting Terms			35
1.04		Rounding			35
1.05		References to Agreements and Laws			35
1.06		Times of Day			35
1.07		Letter of Credit Amounts			36
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS					36
2.01		Loans			36
2.02		Borrowings, Conversions and Continuations of Loans			36
2.03		Letters of Credit			38
2.04		Swing Line Loans			48
2.05		Prepayments			51
2.06		Termination or Reduction of Revolving Credit Commitments; Increase of Facilities			53
2.07		Repayment of Loans			55
2.08		Interest			55
2.09		Fees			57
2.10		Computation of Interest and Fees; Retroactive Adjustments of Applicable Rates			57
2.11		Evidence of Debt			58
2.12		Payments Generally			59
2.13		Sharing of Payments			60
2.14		Maturity Date			61
2.15		Joint and Several Liability of Borrower Parties			62
2.16		Appointment of Borrower as Agent for Borrower Parties			64
2.17		Tax Driven Lease Transactions			64
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY					64
3.01		Taxes			64
3.02		Illegality			65

Section				Page
3.03		Inability to Determine Rates			66
3.04		Increased Cost; Reduced Return; Capital Adequacy; Reserves			66
3.05		Compensation for Losses			67
3.06		Matters Applicable to all Requests for Compensation			67
3.07		Survival			68
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS					68
4.01		Conditions of Initial Credit Extension			68
4.02		Conditions to all Credit Extensions			70
ARTICLE V REPRESENTATIONS AND WARRANTIES					71
5.01		Existence, Qualification and Power; Compliance with Laws			71
5.02		Authorization; No Contravention			71
5.03		Governmental Authorization; Other Consents			71
5.04		Binding Effect			71
5.05		Financial Statements; No Material Adverse Effect			72
5.06		Litigation			72
5.07		No Default			73
5.08		Ownership of Property; Liens			73
5.09		Environmental Compliance			73
5.10		Insurance			73
5.11		Taxes			73
5.12		ERISA Compliance			74
5.13		Consolidated Entities; REIT Status			74
5.14		Margin Regulations; Investment Company Act; Public Utility Holding Company Act			75
5.15		Disclosure			75
5.16		Compliance with Laws			75
5.17		Intellectual Property; Licenses, Etc.			75
5.18		Taxpayer Identification Number			76
ARTICLE VI AFFIRMATIVE COVENANTS					76
6.01		Financial Statements			76
6.02		Certificates; Other Information			77
6.03		Notices			78

Section				Page
6.04		Payment of Obligations			79
6.05		Preservation of Existence, Etc			79
6.06		Maintenance of Properties			80
6.07		Maintenance of Insurance			80
6.08		Compliance with Laws			80
6.09		Books and Records			80
6.10		Inspection Rights			80
6.11		Use of Proceeds			81
6.12		Additional Guarantors; Creation of Co-Borrowers; Release of Co-Borrowers			81
ARTICLE VII NEGATIVE COVENANTS					83
7.01		Liens			83
7.02		Investments			84
7.03		Indebtedness			84
7.04		Fundamental Changes			85
7.05		Dispositions			86
7.06		Restricted Payments			86
7.07		Intentionally Omitted			87
7.08		Transactions with Affiliates			87
7.09		Intentionally Omitted			87
7.10		Use of Proceeds			87
7.11		Financial Covenants			87
7.12		Prepayment of Other Indebtedness, Etc			88
7.13		Organization Documents; Subsidiaries			88
7.14		Tax Driven Lease Transactions			88
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES					89
8.01		Events of Default			89
8.02		Remedies Upon Event of Default			91
8.03		Application of Funds			92
ARTICLE IX ADMINISTRATIVE AGENT					93
9.01		Appointment and Authorization of Administrative Agent			93
9.02		Delegation of Duties			93

Section				Page
9.03		Liability of Administrative Agent			94
9.04		Reliance by Administrative Agent			94
9.05		Notice of Default			95
9.06		Credit Decision; Disclosure of Information by Administrative Agent			95
9.07		Indemnification of Administrative Agent			95
9.08		Administrative Agent in its Individual Capacity			96
9.09		Successor Administrative Agent			96
9.10		Administrative Agent May File Proofs of Claim			97
9.11		Guaranty/Borrower Party Matters			98
9.12		Other Agents; Arrangers and Managers			99
ARTICLE X MISCELLANEOUS					99
10.01		Amendments, Etc			99
10.02		Notices and Other Communications; Facsimile Copies			101
10.03		No Waiver; Cumulative Remedies			103
10.04		Attorney Costs, Expenses and Taxes			103
10.05		Indemnification by the Borrower			103
10.06		Payments Set Aside			104
10.07		Successors and Assigns			105
10.08		Confidentiality			109
10.09		Set-off			110
10.10		Interest Rate Limitation			110
10.11		Counterparts			111
10.12		Integration			111
10.13		Survival of Representations and Warranties			111
10.14		Severability			111
10.15		Tax Forms			112
10.16		Replacement of Lenders			113
10.17		Governing Law			114
10.18		Waiver of Right to Trial by Jury			114
10.19		No Advisory or Fiduciary Responsibility			115
10.20		USA PATRIOT Act Notice			116
10.21		Attorneys’ Fees			116

Section				Page
10.22		Existing Credit Agreement.			116
ARTICLE XI GUARANTY					116
11.01		The Guaranty			116
11.02		Obligations Unconditional			117
11.03		Reinstatement			118
11.04		Certain Additional Waivers			118
11.05		Remedies			118
11.06		Rights of Contribution			119
11.07		Guarantee of Payment; Continuing Guarantee			119

SCHEDULES

	1.1	(a)		Existing Letters of Credit
	1.1	(b)		Investment Entities
	2.01	(a)		Revolving Credit Commitments and Pro Rata Shares
	2.01	(b)		Term Commitments and Pro Rata Shares
	5.05			Supplement to Interim Financial Statements
	5.06			Litigation
	5.09			Environmental Matters
	5.12			ERISA Matters
	5.13			Consolidated Entities and Other Equity Investments
	5.17			Intellectual Property Matters
	10.02			Administrative Agent’s Office, Certain Addresses for Notices
	10.07			Processing and Recordation Fees
EXHIBITS
	A			Form of Revolving Loan Notice
	B			Form of Term Loan Notice
	C			Form of Swing Line Loan Notice
	D	-1		Form of Revolving Credit Note
	D	-2		Form of Term Note
	E			Form of Compliance Certificate
	F			Form of Assignment and Assumption
	G			Form of Guarantor Joinder Agreement
	H			Form of Co-Borrower Joinder Agreement

AMENDED AND RESTATED CREDIT AGREEMENT

     This Amended and Restated CREDIT AGREEMENT (“ Agreement ”) is entered into as of August 29, 2007, among COUSINS PROPERTIES INCORPORATED, a Georgia corporation (the “ Borrower ”), the parties from time to time identified by the Borrower as Co-Borrowers pursuant to Section 6.12 hereof, the Guarantors (as defined herein), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), BANK OF AMERICA, N.A. , as Administrative Agent, Swing Line Lender and L/C Issuer, BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and Sole Book Manager, EUROHYPO AG, NEW YORK BRANCH, as Syndication Agent, PNC BANK, NATIONAL ASSOCIATION, WACHOVIA BANK, NATIONAL ASSOCIATION, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, NORDDEUTSCHE

LANDESBANK GIROZENTRALE, as Managing Agent and AAREAL BANK AG, CHARTER ONE BANK, N.A. and REGIONS BANK, as Co-Agents.

     The Borrower, the Co-Borrowers and the guarantors party thereto, each lender party thereto, the Administrative Agent and certain other agents are parties to that certain Amended and Restated Credit Agreement, dated as of March 7, 2006 (as amended to the date hereof, the “ Existing Credit Agreement ”).

     The Borrower and the Co-Borrowers have requested that the Lenders amend, increase and restate the Existing Credit Agreement to, among other things, provide a term credit facility for the purpose of reducing the outstanding principal balance of certain existing indebtedness of the Borrower and to increase the principal amount of the revolving credit facility thereunder, and the Lenders are willing to do so on the terms and conditions set forth herein.

     In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

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

     “ 191 Peachtree Building ” means the 1,215,000 square foot office building located at 191 Peachtree Street in Atlanta, Georgia.

     “ Adjusted Consolidated EBITDA ” means, for any period, an amount equal to (a) Consolidated EBITDA for such period, less (b) a deemed capital expenditures reserve deduction equal to, on an annual basis, (i) $0.35 per rentable square foot of all Income Producing Assets (or any portion thereof) which constitutes office space; (ii) $0.15 per rentable square foot of all Income Producing Assets (or any portion thereof) which constitutes retail space; (iii) $0.15 per rentable square foot of all Income Producing Assets (or any portion thereof) which constitutes industrial space; (iv) $200.00 per unit for all Income Producing Assets (or any portion thereof) which constitutes apartments and (v) with respect to any asset approved by the Administrative Agent pursuant to clause (v) of the definition of “Applicable Capitalization Rate” such commercially reasonable reserve as agreed to between the Borrower and the Administrative Agent.

     “ Adjusted Unencumbered EBITDA ” means, for any period, that portion of Adjusted Consolidated EBITDA for such period generated by Unencumbered Properties (following deductions for deemed capital expenditure reserves applicable to such Unencumbered Properties as set forth in the definition of Adjusted Consolidated EBITDA).

     “ Administrative Agent ” or “ Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

     “ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

     “ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

     “ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “ 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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

     “ Agent-Related Persons ” means the Administrative Agent, together with its Affiliates (including, in the case of Bank of America in its capacity as the Administrative Agent, the Arranger), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

     “ Aggregate Revolving Credit Commitments ” means the aggregate Revolving Credit Commitments of all the Revolving Credit Lenders, as adjusted from time to time in accordance with the terms of this Agreement. The Aggregate Revolving Credit Commitments as of the Closing Date shall be $500,000,000.

     “ Agreement ” means this Amended and Restated Credit Agreement, as the same may be amended, restated, supplemented or modified from time to time in accordance with its terms.

     “ Applicable Capitalization Rate ” means (i) 7.75% for Income Producing Assets primarily constituting office space; (ii) 7.75% for Income Producing Assets primarily constituting retail space, (iii) 7.75% for Income Producing Assets primarily constituting industrial space, (iv) 7.00% for Income Producing Assets primarily constituting apartments and (v) 8.00% for other Income Producing Assets that are not described in clauses (i), (ii), (iii) and (iv) preceding; provided , that , in order for any Income Producing Assets to be included in calculations under this Agreement pursuant to this clause (v), such Income Producing Assets must be approved for inclusion by the Administrative Agent.

     “ Applicable Rate ” means, from time to time, for the purposes of calculating (a) the interest rate applicable to Eurodollar Rate Loans for the purposes of Section 2.08 , (b) the interest rate applicable to Base Rate Loans for the purposes of Section 2.08 or (c) the Letter of Credit Fee for the purposes of Section 2.03(i) , the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b) :

      For the Revolving Credit Facility :

      Applicable Rate

						Eurodollar Rate
			Consolidated			Loans
Pricing Level			Leverage Ratio			Letter of Credit Fee					Base Rate Loans
1			£ 0.35:1				0.75	%				0	%
2			> 0.35:1 but £ 0.45:1				0.85	%				0	%
3			> 0.45:1 but £ 0.50:1				0.95	%				0	%
4			> 0.50:1 but £ 0.55:1				1.10	%				0	%
5			> 0.55:1				1.25	%				0	%

      For the Term Facility :

      Applicable Rate

			Consolidated			Eurodollar Rate
Pricing Level			Leverage Ratio			Loans					Base Rate Loans
1			£ 0.35:1				0.70	%				0	%
2			> 0.35:1 but £ 0.45:1				0.80	%				0	%
3			> 0.45:1 but £ 0.50:1				0.90	%				0	%
4			> 0.50:1 but £ 0.55:1				1.05	%				0	%
5			> 0.55:1				1.20	%				0	%

     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered (until such time as such delinquent Compliance Certificate is delivered). The Applicable Rate in effect on the Closing Date shall be Pricing Level 2.

     “ Appropriate Lender ” means, at any time, (a) with respect to any of the Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a) , the Revolving Credit Lenders and (c) with respect to the Swing Line

Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a) , the Revolving Credit Lenders.

     “ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

     “ Arranger ” means a collective reference to Banc of America Securities LLC in its capacity as sole lead arranger and sole book manager.

     “ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

     “ Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit F .

     “ Attorney Costs ” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel.

     “ Attributable Indebtedness ” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. Notwithstanding the foregoing, Attributable Indebtedness shall not include the Attributable Indebtedness of Investment Entities except to the extent any other Unconsolidated Entity or Consolidated Entity is liable for the same (disregarding any liability with respect to customary recourse carve-outs applicable to any non-recourse secured Attributable Indebtedness and disregarding any general partnership liability of the Designated Entities).

     “ Audited Financial Statements ” means the audited consolidated balance sheets of the Borrower and the Consolidated Entities for the calendar year ended December 31, 2006, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such calendar year of such Persons, including the notes thereto.

     “ Availability Period ” means the period from and including the Closing Date to the earliest of (a) the Maturity Date for the Revolving Credit Facility, (b) the date of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.06 , and (c) the date of termination of the Revolving Credit Commitment of each Lender to make Revolving Credit Loans, the obligation of the L/C Issuer to make L/C Credit Extensions and the obligation of the Swing Line Lender to make Swing Line Loans pursuant to Section 8.02 .

     “ Bank of America ” means Bank of America, N.A. and its successors.

     “ Bankruptcy Code ” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

     “ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its “prime rate.” The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change.

     “ Base Rate Loan ” means (i) a Term Loan or a Revolving Credit Loan that bears interest based on the Base Rate, or (ii) a Swing Line Loan.

     “ Borrower ” has the meaning specified in the introductory paragraph hereto.

     “ Borrowing ” means (i) a borrowing consisting of simultaneous Term Loans or Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 , or (ii) a Swing Line Borrowing.

     “ Borrower Materials ” has the meaning specified in Section 6.02 .

     “ Borrower Parties ” means, as of any date of determination, a collective reference to the Borrower and each party that has been identified by the Borrower as a Co-Borrower under the Facilities pursuant to Section 6.12 hereof and has not, prior to or as of such date of determination, been released as a Co-Borrower pursuant to such section.

     “ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

     “ Capital Lease Obligations ” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.

     “ Capital Stock ” means any and all shares, interests or other equivalents (however designated) of capital stock of a corporation, any and all equivalent equity ownership interests in a Person that is not a corporation, including, without limitation, any and all member or other equivalent interests in any limited liability company or partnership interests or other equivalents in any kind of partnership, and any and all warrants or options to purchase any of the foregoing.

     “ Cash Collateralize ” has the meaning specified in Section 2.03(g) .

     “ Cash Equivalents ” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than ninety (90) days from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “ Approved Bank ”), in each case with maturities of not more than ninety (90) days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within ninety (90) days of the date of acquisition and (d) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).

     “ Change of Control ” means, with respect to any Person, an event or series of events by which:

     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire which are granted by such Person (such right, an “ option right ”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% (or, in the case of Thomas G. Cousins, 40%) or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right granted by such Person); or

     (b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause

(iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors).

     “ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .

     “ Co-Borrower ” has the meaning specified in Section 6.12 hereof.

     “ Co-Borrower Joinder Agreement ” means a Co-Borrower Joinder Agreement substantially in the form of Exhibit H hereto, executed and delivered by a new Co-Borrower in accordance with the provisions of Section 6.12 .

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

     “ Combined Parties ” means the Borrower, the Consolidated Entities and the Unconsolidated Entities.

     “ Commitment ” means (i) the Term Commitment of any Term Lender, (ii) the Revolving Credit Commitment of any Revolving Credit Lender, (iii) the aggregate Term Commitments of all Term Lenders and/or (iv) the Aggregate Revolving Credit Commitments, in each case, as the context may require.

     “ Compliance Certificate ” means a certificate substantially in the form of Exhibit E .

     “ Consolidated EBITDA ” means, for any period, for the Borrower and the Consolidated Entities on a consolidated basis, an amount equal to Consolidated Net Income for such period plus the following to the extent deducted in calculating such Consolidated Net Income: (a) Interest Expense for such period, (b) the provision for federal, state, local and foreign income taxes payable by the Borrower and the Consolidated Entities for such period, (c) the amount of depreciation and amortization expense deducted in determining such Consolidated Net Income, and (d) proceeds attributable to minority interests.

     “ Consolidated Entities ” means any Person (other than an Investment Entity) in which the Borrower owns any Capital Stock, the accounts of which Person are consolidated with those of the Borrower in accordance with GAAP.

     “ Consolidated Fixed Charge Coverage Ratio ” means, as of any date of determination, the ratio of (a) Adjusted Consolidated EBITDA for the Measurement Period ending on such date to (b) Fixed Charges for such Measurement Period.

     “ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) the sum of (i) Total Debt as of such date, plus (ii) fifty percent (50%) of all issued and outstanding Trust Preferred Securities as of such date until the aggregate amount of issued and outstanding Trust Preferred Securities equals $150,000,000, plus (iii) one hundred percent (100%) of all

issued and outstanding Trust Preferred Securities as of such date in excess of $150,000,000 to (b) Total Assets as of such date.

     “ Consolidated Net Income ” means, for any period, for the Borrower and the Consolidated Entities on a consolidated basis determined in accordance with GAAP, the net income of the Borrower and the Consolidated Entities (excluding the effect of any extraordinary gains or losses or other non-cash gains or losses outside the ordinary course of business or gains or losses on sales of investment property (including any impairment charges, whether or not incurred in connection with the sale of depreciated investment property or otherwise)) for that period; provided, that net income shall not, in any case, include any income allocable to Capital Stock interests of any Loan Party (other than the Borrower) or any Affiliate of the Borrower or any other Loan Party (whether by virtue of the organizational documents of such entity or contractual arrangement) held by third parties other than the Borrower and the Consolidated Entities.

     “ Consolidated Parties ” means a collective reference to the Borrower and the Consolidated Entities, and “ Consolidated Party ” means any one of them.

     “ Consolidated Unencumbered Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Adjusted Unencumbered EBITDA for the Measurement Period ending on such date to (b) Interest Expense for Unsecured Debt for such Measurement Period.

     “ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

     “ Control ” has the meaning specified in the definition of “Affiliate.”

     “ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

     “ DAFC ” means the Development Authority of Fulton County, Georgia.

     “ DAFC Indentures ” means the DAFC Terminus Indenture and the DAFC 191 Indenture.

     “ DAFC Leases ” means the DAFC Terminus Lease and the DAFC 191 Lease.

     “ DAFC 191 Indenture ” means that certain Bond Purchase Agreement, dated as of December 27, 2006, between the DAFC and One Ninety One Peachtree Associates, LLC, a wholly-owned subsidiary of the Borrower.

     “ DAFC 191 Lease ” means that certain Lease Agreement, dated as of December 1, 2006, between the DAFC and One Ninety One Peachtree Associates, LLC, a wholly-owned subsidiary of the Borrower.

     “ DAFC Terminus Indenture ” means that certain Bond Purchase Agreement, dated as of December 27, 2006, between the DAFC and 3280 Peachtree I LLC, a wholly-owned subsidiary of the Borrower.

     “ DAFC Terminus Lease ” means that certain Lease Agreement, dated as of December 1, 2006, between the DAFC and 3280 Peachtree I LLC, a wholly-owned subsidiary of the Borrower.

     “ DAFC Transactions ” means the conveyance of the Terminus Project and the 191 Building to DAFC and the consummation of the transactions evidenced and contemplated by the DAFC Indentures and the DAFC Leases.

     “ Daily Undrawn Amount ” means, for each day during the term hereof, an amount equal to (a) the Aggregate Revolving Credit Commitments existing as of the end of such day, less (b) the aggregate Outstanding Amount (with respect to both Revolving Credit Loans and L/C Obligations) as of the end of such day.

     “ Daily Unused Fee ” means, for each day during the term hereof, an amount equal to (a) the Daily Undrawn Amount for such day, multiplied by (b) a per diem percentage rate (for a 360 day year) based on an annum percentage rate calculated in accordance with the following:

Daily Unused Percentage		Applicable per annum %
> 50.0%			0.200	%
£ 50.0%			0.125	%

     “ Daily Unused Percentage ” means, for any day during the term hereof, a percentage equal to (a) the Daily Undrawn Amount as of the end of such day, divided by (b) the Aggregate Revolving Credit Commitments as of the end of such day.

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

     “ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

     “ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees or Swing Line Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, for a Facility applicable to Base Rate Loans outstanding under such Facility, plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate for a Facility) otherwise applicable to such Loan outstanding under such Facility, plus 2% per annum, (b) when used with respect to Swing Line Loans, an interest rate equal to (i) the Base Rate plus (ii) 1% per annum, and (c) when used with respect to Letter of

Credit Fees, a rate equal to the Applicable Rate for the Revolving Credit Facility for Letter of Credit Fees plus 2% per annum, in all cases to the fullest extent permitted by applicable Laws.

     “ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Term Loans, Revolving Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

     “ Designated Entities ” means a collective reference to (a) Wildwood Associates, (b) Temco Associates or (c) any general partner of a Texas limited partnership which would otherwise be included in the applicable calculation (so long as in the case of clause (c) the general partner is not a Borrower Party); provided, that (i) inclusion of Wildwood Associates and Temco Associates as “Designated Entities” hereunder shall be subject to verification from time to time by the Administrative Agent that the JV partners with respect to such entities are liable for fifty percent (50.0%) of the total liabilities of such entities and (ii) inclusion of any Texas limited partnerships as “Designated Entities” hereunder shall be subject to verification by the Administrative Agent that neither any Borrower Party nor any other Consolidated Entity (that is not such Texas limited partnership or its general partner) is liable for any of the liabilities of such Texas limited partnership.

     “ Disposition ” or “ Dispose ” means the sale, transfer or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, provided that it shall not include any lease, license or other occupancy agreement.

     “ Dollar ” and “ $ ” mean lawful money of the United States.

     “ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

     “ Eligible Assignee ” means any assignee permitted pursuant to Section 10.7(b); provided , that , Eligible Assignee shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

     “ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,

franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

     “ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974.

     “ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

     “ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

     “ Eurodollar Rate ” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by Agent pursuant to the following formula:

Eurodollar Rate =		Eurodollar Base Rate
		1.00 — Eurodollar Reserve Percentage

          Where,

     “ Eurodollar Base Rate ” means, for such Interest Period (rounded upwards, as necessary, to the nearest 1/100 of 1%) the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “ Eurodollar Base Rate ” for such Interest Period (rounded upwards, as necessary, to the nearest 1/100 of 1%) shall be the rate per annum determined by Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch (or, if a quote is not available from Bank of America’s London Branch, then another major bank’s London branch, as reasonably selected by the Administrative Agent) to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

     “ Eurodollar Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System of the United States for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

     “ Eurodollar Rate Loan ” means a Term Loan or a Revolving Credit Loan that bears interest at a rate based on the Eurodollar Rate.

     “ Event of Default ” has the meaning specified in Section 8.01 .

     “ Existing Credit Agreement ” has the meaning specified in the second introductory paragraph hereto.

     “ Existing Indebtedness ” means (a) that certain Construction Facility Credit Agreement, dated as of March 7, 2006 among the Borrower, Bank of America, N.A., as administrative agent, and a syndicate of lenders party thereto, and (b) that certain Credit Agreement dated July 9, 2007 among the Borrower, Bank of America, N.A., as administrative agent, and a syndicate of lenders party thereto.

     “ Existing Letters of Credit ” means those Letters of Credit described on Schedule 1.1(a) attached hereto.

     “ Extended Maturity Date ” has the meaning specified in Section 2.14(b) .

     “ Facility ” means the Term Facility or the Revolving Credit Facility, as the context may require.

     “ Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

     “ Fee Letter ” means the letter agreement, dated July 19, 2007, among the Borrower, the Administrative Agent and the Arranger.

     “ Fixed Charges ” means, in the aggregate for the Combined Parties and for the applicable period of calculation, the sum of (a) Interest Expense of the Combined Parties, plus (b) the principal component of all payments made in respect of Capital Lease Obligations, plus (c) any payments required to be made (whether or not actually made) in respect of ground rental obligations under ground leases, plus (d) regularly scheduled required principal payments on Indebtedness for Money Borrowed (excluding any scheduled balloon, bullet, or similar principal payment which repays such Indebtedness for Money Borrowed in full) plus (e) rentals payable under leases of real property during such period to the extent not covered in clause (b), plus (f) any dividends paid or payable by Borrower or any of its Consolidated Entities in respect of any class of preferred capital stock; provided, however, that in calculating Fixed Charges of each Consolidated Entity and Unconsolidated Entity, the amount of the items described in clauses (a), (b), (c), (d), (e) and (f) above of such Consolidated Entity shall be reduced by the share allocable to interests held by Persons other than the Borrower or other Consolidated Entities, and as to such Unconsolidated Entity shall be multiplied by the percentage of the Borrower’s direct and indirect ownership interest in such Unconsolidated Entity (except to the extent the Borrower or the applicable Consolidated Entity owner of the capital stock of the applicable Unconsolidated Entity is liable, whether contractually or otherwise, for a greater portion of such amount (disregarding any liability with respect to customary recourse carve-outs applicable to any nonrecourse secured Indebtedness), in which case such higher amount shall be used in the

applicable calculations (except with respect to the Designated Entities, for which only the percentage of the Borrower’s direct or indirect ownership interest shall be used)).

     “ Foreign Lender ” has the meaning specified in Section 10.15(a)(i) .

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

     “ Fully Satisfied ” means, with respect to the Obligations as of any date, that, as of such date, (a) all principal of and interest accrued to such date which constitute Obligations shall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then due and payable which constitute Obligations shall have been irrevocably paid in cash, and (c) the Commitments shall have been expired or terminated in full.

     “ FRB ” means the Board of Governors of the Federal Reserve System of the United States.

     “ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

     “ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

     “ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

     “ Guarantee ” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the

payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien (other than a Permitted Lien) on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. Notwithstanding the foregoing, Guarantee shall not include completion guarantees or the endorsement of instruments. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

     “ Guarantors ” means, collectively, each of those Persons identified as a “Guarantor” on the signature pages hereto, and each Person that subsequently becomes a Guarantor pursuant to Section 6.12 , and “ Guarantor ” means any one of them.

     “ Guaranty ” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Article XI hereof.

     “ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

     “ Income Producing Assets ” means (a) the 191 Peachtree Building and (b) all other real property assets of the Borrower, any Consolidated Entity or any Unconsolidated Entity (i) which are partially or fully income producing for financial reporting purposes on the applicable calculation date and have been continuously partially or fully income producing for financial reporting purposes for the calendar quarter ending immediately preceding the calculation date, (ii) for which an unconditional base building certificate of occupancy (or its equivalent) has been issued by the applicable Governmental Authority, and (iii) as to such assets which in the immediately preceding reporting period were classified as Non-Income Producing Assets, which either (A) are leased to tenants in occupancy and/or to parties not yet in occupancy but which have signed leases under which the only condition to occupancy is completion of the applicable space, and the leases for such tenants in occupancy or to be in occupancy represent eighty percent (80%) or more of the rentable square footage of the applicable real property asset; or (B) have been a Non-Income Producing Asset for a period equal to or in excess of eighteen (18) months following the issuance of an unconditional base building certificate of occupancy

(provided, that different phases of real property developments shall be treated as different assets for purposes of this determination); provided, however, that “Income Producing Assets” shall not include intra or inter-entity obligations between the Borrower and any of the Consolidated Entities.

     “ Indebtedness ” means, as to any Person at a particular time, without duplication, total liabilities of such Person as determined by GAAP, plus all of the following, in each case to the extent not otherwise included as total liabilities in accordance with GAAP:

     (a) all Indebtedness for Money Borrowed of such Person;

     (b) all obligations under financing leases, all Capital Lease Obligations (including all capitalized interest under any capital leases), all Synthetic Lease Obligations and all Off-Balance Sheet Liabilities of such Person;

     (c) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

     (d) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

     (e) all obligations of such Person to pay the deferred purchase price of property or services to the extent constituting indebtedness pursuant to GAAP (other than trade accounts payable in the ordinary course of business) and all obligations under any repurchase, take-out commitments or forward equity commitments (other than, with respect to the calculation of the Indebtedness of the Borrower, any Consolidated Entity or any Unconsolidated Entity, commitments to a Consolidated Entity, an Unconsolidated Entity or an Investment Entity);

     (f) net obligations of such Person under any Swap Contract;

     (g) all Monetized Guarantees of such Person in respect of any of the foregoing;

however, for purposes of this Agreement, (i) Indebtedness shall not include (A) shareholders’ and partners’ and members’ equity, (B) capital stock, (C) surplus, (D) reserves for general contingencies and other cash reserves, (E) minority interests in Consolidated Entities, and (F) deferred income which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet of such Person and (ii) Indebtedness, as calculated for the Borrower or any Loan Party shall not include Indebtedness of Investment Entities, except, for clarification purposes, to the extent any other Unconsolidated Entity or Consolidated Entity is liable for the same (disregarding any liability with respect to customary

recourse carve-outs applicable to any nonrecourse secured Indebtedness and disregarding any general partnership liability of the Designated Entities).

The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease obligation or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.

For purposes of clarification, notwithstanding any language to the contrary contained in the foregoing, there shall be no double-counting of Indebtedness (for example, in the case of a guaranty or letter of credit supporting other Indebtedness).

     “ Indebtedness for Money Borrowed ” means, with respect to any Person, without duplication (a) all money borrowed by such Person and Indebtedness of such Person represented by notes payable by such Person and drafts accepted representing extensions of credit to such Person, (b) all Indebtedness of such Person evidenced by bonds, debentures, notes, or other similar instruments, (c) all Indebtedness of such Person upon which interest charges are customarily paid, (d) all Indebtedness of such Person issued or assumed as full or partial payment for property or services (other than accrued employee compensation), whether or not any such notes, drafts, obligations or Indebtedness would otherwise represent “Indebtedness for Money Borrowed” and (e) all capitalized interest under any capital leases and the principal balance outstanding with respect to any Off-Balance Sheet Liabilities where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP. For purposes of this definition, (i) interest which is accrued but not paid on the original due date or within any applicable cure or grace period as provided by the underlying contract for such interest shall be deemed Indebtedness for Money Borrowed and (ii) trade account payables arising in the ordinary course of business and not delinquent by more than ninety (90) days shall not be deemed Indebtedness for Money Borrowed. Indebtedness for Money Borrowed with respect to the Borrower, the Consolidated Entities and/or the Unconsolidated Entities shall not include any obligations of Investment Entities except, for clarification purposes, to the extent any other Unconsolidated Entity or Consolidated Entity is liable for the same (disregarding any liability with respect to customary recourse carve-outs applicable to any nonrecourse secured Indebtedness and disregarding any general partnership liability of the Designated Entities).

     “ Indemnified Liabilities ” has the meaning specified in Section 10.05 .

     “ Indemnitees ” has the meaning specified in Section 10.05 .

     “ Initial Maturity Date ” has the meaning specified in Section 2.14(a)(ii) .

     “ Interest Capitalized ” means, in respect of any period, interest capitalized by the Borrower and its Consolidated Entities in such period calculated in accordance with GAAP plus to the extent not already included herein the Borrower’s pro rata share of the interest capitalized of its Unconsolidated Entities.

     “ Interest Expense ” means, in respect of any period, an amount equal to the sum of (a) the interest payable during such period with respect to Indebtedness for Money Borrowed of the Borrower and its Consolidated Entities (and, when specified in the applicable covenant, a pro rata share of the interest payable for the Unconsolidated Entities), and (b) the interest component of capitalized lease obligations of the Borrower and the Consolidated Entities, less any Interest Capitalized.

     “ Interest Expense for Unsecured Debt ” means for any period, Interest Expense with respect to Unsecured Debt of the Borrower and the Consolidated Entities.

     “ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the fifth (5 ^th ) day of each calendar month and the Maturity Date of the Facility under which such Loan was made.

     “ Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower (on its behalf or on behalf of a Co-Borrower) in a Loan Notice; provided that:

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

     (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;

     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made; and

     (d) the Borrower may (on its own behalf or on behalf of any Co-Borrower), in addition to the periods set forth above, request and receive an Interest Period for a

Eurodollar Rate Loan shorter than one (1) month if and to the extent that the Administrative Agent has pre-approved such shorter period (such approval to be withheld in the absolute and sole discretion of the Administrative Agent) and no Lender objects to the use of such shorter period prior to the establishment thereof (such objections to be raised in the absolute and sole discretion of the respective Lenders).

     “ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, 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 a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

     “ Investment Entities ” means, as of any date of determination, those Persons in which the Borrower, any of the Consolidated Entities or any of the Unconsolidated Entities directly or indirectly owns any Capital Stock which satisfy each of the following criteria: (a) such Person is an unconsolidated entity with respect to the Borrower for financial reporting purposes or is an entity that is consolidated with the Borrower as a result of the pronouncement entitled Financial Interpretation 46 “Consolidation of Variable Interest Entities” by the Financial Accounting Standards Board on January 17, 2003 as revised from time to time, (b) a party other than Borrower, a Consolidated Entity or an Unconsolidated Entity has primary control over day-to-day management of such Person (responsibilities under management agreements shall not constitute control), and (c) none of the Borrower, any Consolidated Entity or any Unconsolidated Entity is directly or contingently liable for indebtedness of such Person, except for standard and customary recourse carve-outs commonly included in non-recourse financings in the form of guarantees or indemnities. For a list of the entities which are Investment Entities of the Borrower as of the Closing Date, see Schedule 1.1(b) attached hereto.

     “ IP Rights ” has the meaning specified in Section 5.17.

     “ IRS ” means the United States Internal Revenue Service.

     “ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

     “ Issuer Documents ” means with respect to any Letter of Credit, the Letter Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer

and the Borrower (or any Consolidated Entity) or in favor of the L/C Issuer and relating to any such Letter of Credit.

     “ Joinder Agreement ” means a Joinder Agreement substantially in the form of Exhibit G hereto, executed and delivered by a new Guarantor in accordance with the provisions of Section 6.12 .

     “ Land and Condominium Assets ” means Non-Income Producing Assets that consist primarily of undeveloped land and residential condominium assets.

     “ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case to the extent from time to time in full force and effect or otherwise having the force of law.

     “ L/C Advance ” means, with respect to each Revolving Credit Lender, such Revolving Credit Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.

     “ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Loan or a Swing Line Loan.

     “ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

     “ L/C Issuer ” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

     “ L/C Obligations ” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the

operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

     “ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuer, the Swing Line Lender, each Revolving Credit Lender and each Term Lender.

     “ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

     “ Letter of Credit ” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. For purposes of this Agreement, a Letter of Credit may be a standby letter of credit only and may not be a commercial letter of credit.

     “ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

     “ Letter of Credit Cash Collateral Date ” means the day that is ten (10) days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the preceding Business Day).

     “ Letter of Credit Fee ” has the meaning specified in Section 2.03(i) .

     “ Letter of Credit Expiration Date ” means the day that is one year after the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the preceding Business Day).

     “ Letter of Credit Sublimit ” means, for any date of determination, an amount equal to fifty percent (50.0%) multiplied by the amount of the Aggregate Revolving Credit Commitments in existence as of such date. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

     “ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).

     “ Liquid Assets ” means, as of any date of determination, the following assets of the Combined Parties: (a) unrestricted cash and marketable securities; and (b) notes receivable (related to loans that are not in default and otherwise fully performing as of such date) secured by a mortgage instrument with a valid and enforceable first priority mortgage lien on a fee or leasehold interest held by the debtor in the applicable real estate assets, where the fair market value of such real estate assets is greater than 110% of the amount of Indebtedness secured thereby.

     “ Loan ” means an extension of credit by a Lender to the Borrower or any Co-Borrower under Article II in the form of a Revolving Credit Loan, a Swing Line Loan or a Term Loan.

     “ Loan Documents ” means this Agreement, each Note, each Issuer Document, each Joinder Agreement, each Co-Borrower Joinder Agreement and the Fee Letter.

     “ Loan Notice ” means a Term Loan Notice, a Revolving Credit Loan Notice or a Swing Line Loan Notice.

     “ Loan Parties ” means, as of any date of determination, a collective reference to the Borrower, each Co-Borrower and each Guarantor existing as of such date.

     “ Material Adverse Effect ” means (a) a material adverse effect upon, the results of operations, business, properties, financial condition or business prospects of the Combined Parties taken as a whole; (b) a material impairment of the ability of the Loan Parties taken as a whole to perform their obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

     “ Maturity Date ” means (a) with respect to the Revolving Credit Facility, the later to occur of (i) the Initial Maturity Date; and (ii) to the extent maturity is extended pursuant to Section 2.14 , the Extended Maturity Date, and (b) with respect to the Term Facility, August 29, 2012; provided , that , in each case, if such date is not a Business Day, then the Maturity Date shall be the preceding Business Day.

     “ Measurement Period ” means, at any date of determination, the most recently completed four calendar quarters of the Borrower.

     “ Monetized Guarantee ” means any Guarantee which (a) is a Guarantee of Indebtedness for Money Borrowed; (b) is a Guarantee that has been reduced to judgment or otherwise liquidated for a specified monetary amount; or (c) is a Guarantee of performance of any

obligation which obligation is past due beyond any applicable grace or cure period and the liability under which can be reasonably quantified in terms of the monetary liability of the applicable obligor.

     “ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

     “ Non-Income Producing Asset ” means any real property asset of the Borrower, any Consolidated Entity, or any Unconsolidated Entity which does not qualify as an “Income Producing Asset” (following application of subsection (b)(iii)(B) and each other provision of the definition thereof).

     “ Note ” means each Term Note and each Revolving Credit Note, or any of them.

     “ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including (a) interest and fees that accrue under the Loan Documents after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding and (b) any Swap Contract entered into in connection with the Loans by any Loan Party with respect to which a Lender or any Affiliate of such Lender is a party.

     “ Off-Balance Sheet Liabilities ” means, with respect to any Person as of any date of determination thereof, without duplication and to the extent not included as a liability on the consolidated balance sheet of such Person and its consolidated Subsidiaries in accordance with GAAP: (a) with respect to any asset securitization transaction (including any accounts receivable purchase facility) (i) the unrecovered investment of purchasers or transferees of assets so transferred and (ii) any other payment, recourse, repurchase, hold harmless, indemnity or similar obligation of such Person or any of its Subsidiaries in respect of assets transferred or payments made in respect thereof, other than limited recourse provisions that are customary for transactions of such type and that neither (x) have the effect of limiting the loss or credit risk of such purchasers or transferees with respect to payment or performance by the obligors of the assets so transferred nor (y) impair the characterization of the transaction as a true sale under applicable Laws (including Debtor Relief Laws); (b) the monetary obligations under any financing lease or so-called “synthetic,” tax retention or off-balance sheet lease transaction which, upon the application of any Debtor Relief Law to such Person or any of its Subsidiaries, would be characterized as indebtedness; or (c) the monetary obligations under any sale and

leaseback transaction which does not create a liability on the consolidated balance sheet of such Person and its Subsidiaries; or (d) any other monetary obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheet of such Person and its Subsidiaries (for purposes of this clause (d), any transaction structured to provide tax deductibility as interest expense of any dividend, coupon or other periodic payment will be deemed to be the functional equivalent of a borrowing).

     “ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

     “ Outstanding Amount ” means (i) with respect to Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

     “ Participant ” has the meaning specified in Section 10.07(d) .

     “ PBGC ” means the Pension Benefit Guaranty Corporation.

     “ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

     “ Permitted Liens ” means, at any time, Liens in respect of property of the Borrower, Consolidated Entities and/or Unconsolidated Entities constituting:

     (a) Liens existing pursuant to any Loan Document;

     (b) Liens (other than Liens imposed under ERISA) for taxes, assessments (including private assessments and charges) or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, or which have been insured over without qualification, condition or assumption by title insurance or otherwise in a manner acceptable to Agent in its sole discretion;

     (c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, no action has been taken to enforce the same (other than filing of a Lien) and which are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established or which have been bonded;

     (d) zoning restrictions, easements, rights-of-way, restrictions and other encumbrances affecting real property which, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

     (e) leases or subleases to third parties (including any Affiliates of Borrower or any Combined Party);

     (f) Liens securing judgments for the payment of money not constituting an Event of Default hereunder or securing appeal or other surety bonds related to such judgments;

     (g) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement; and

     (h) Liens incurred in the ordinary course of business in connection with workers compensation, unemployment insurance or other social security obligations.

     “ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

     “ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

     “ Platform ” has the meaning specified in Section 6.02 .

     “ Pro Rata Share ” means, (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate Term Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at such time, over the aggregate Term Commitments of all Term Lenders at such time, and (ii) thereafter, the principal amount of such Term Lender’s Term Loans at such time, over the aggregate principal amount of all Term Loans at such time, and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Credit Commitment of such Lender at such time and the denominator of which is the amount of the Revolving Credit Commitments of all Revolving Credit Lenders at such time; provided that if the Revolving Credit Commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , then the Pro Rata Share of each Revolving Credit Lender shall be determined based on the Pro Rata Share of such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedules 2.01(a) and (b) , as applicable, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

     “ Register ” has the meaning specified in Section 10.07(c) .

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

     “ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

     “ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Term Loan Notice or a Revolving Credit Loan Notice, as the case may be, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

     “ Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) the aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

     “ Required Revolving Credit Lenders ” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) the aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.

     “ Required Term Lenders ” means, as of any date of determination, Term Lenders holding more than 50% of the Term Facility on such date; provided , that , the portion of the Term Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

     “ Responsible Officer ” means the chief executive officer, any vice chairman, president, chief financial officer, chief investment officer, chief administrative officer, general counsel or, solely with respect to the ability to request advances of Loans, L/C Credit Extensions and continuations and conversions of Loans and to sign Compliance Certificates, any other Person who is authorized in writing by any of the foregoing to make such requests. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

     “ Restricted Payment ” means any cash dividend or other distribution with respect to any Capital Stock (including preferred stock) or other equity interest of the Borrower or any Consolidated Entity, or any payment, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or other equity interest, other than any distribution or other payment solely in Capital Stock of such Person.

     “ Restricted Purchase ” means any payment on account of the purchase, redemption, or other acquisition or retirement of any Capital Stock (including preferred equity) of the Borrower.

     “ Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(a) .

     “ Revolving Credit Commitment ” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(a) , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

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

     “ Revolving Credit Lender ” means, at any time, (a) so long as the Revolving Credit Commitments are outstanding, any Lender that has a Revolving Credit Commitment at such time or (b) if the Revolving Credit Commitments have been terminated or expired, hold a Revolving Credit Loan or a participation in L/C Obligations or Swing Line Loans at such time.

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

     “ Revolving Credit Loan Notice ” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Revolving Credit Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans made under the Revolving Credit Facility, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .

     “ Revolving Credit Note ” means a promissory note made by the Borrower or any Co-Borrowers in favor of a Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Revolving Credit Lender, substantially in the form of Exhibit D-1 , together with each Co-Borrower Joinder Agreement executed by any Co-Borrower, to the extent the same has not been terminated pursuant to Section 6.12 hereof.

     “ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

     “ Secured Debt ” means, for any given calculation date, the total aggregate principal amount of Indebtedness for Money Borrowed of the Borrower and the Consolidated Entities, on a consolidated basis (and without duplication on account of the guaranty obligations of the Borrower or any Consolidated Entity relating to the Indebtedness for Money Borrowed of another Consolidated Entity), that is secured in any manner by any Lien; provided, that obligations in respect of Capitalized Leases shall not be deemed to be Secured Debt. For clarification purposes, (i) any unsecured guaranty given by the Borrower or any Consolidated

Entity of secured obligations of a Person who is not a Consolidated Entity does not constitute Secured Debt of the Person giving the guaranty, (ii) any unsecured guaranty given by the Borrower or any Consolidated Entity of the Secured Debt of another Consolidated Entity constitutes the Secured Debt of the Person directly incurring the Secured Debt and shall not be calculated as part of the obligations of the Person giving the guaranty, (iii) any unsecured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of a Person who is not a Consolidated Entity does not constitute Secured Debt of the Person giving the guaranty, (iv) any unsecured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of another Consolidated Entity does not constitute the Secured Debt of the Person directly incurring such obligations and shall not be calculated as part of the obligations (secured or otherwise) of the Person giving the guaranty, (v) any secured guaranty given by the Borrower or any Consolidated Entity of secured obligations of a Person who is not a Consolidated Entity constitutes Secured Debt of such Person giving the guaranty, (vi) any secured guaranty given by the Borrower or any Consolidated Entity of the secured obligations of another Consolidated Entity constitutes the Secured Debt of the Person directly incurring the secured obligations and shall not be calculated as part of the obligations (secured or otherwise) of the Person giving the guaranty, (vii) any secured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of a Person who is not a Consolidated Entity constitutes the Secured Debt of the Person giving the guaranty, and (viii) any secured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of any Consolidated Entity constitutes the Secured Debt of the Person giving the guaranty and shall not be calculated as part of the obligations (secured or otherwise) of the Person directly incurring such obligations.

     “ Shareholders’ Equity ” means, as of any date of determination, consolidated shareholders’ equity of the Borrower and its Consolidated Entities as of that date determined in accordance with GAAP.

     “ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

     “ Swap Contract ” means (a) 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 relating to the foregoing, and (b) 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 related to any of the foregoing (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

     “ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap 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 Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

     “ Swing Line ” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04 .

     “ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .

     “ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

     “ Swing Line Loan ” has the meaning specified in Section 2.04(a) .

     “ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit C .

     “ Swing Line Sublimit ” means an amount equal to (a) $50,000,000, less (b) a percentage equal to the percentage reduction in the Revolving Credit Commitments below a level of $500,000,000. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

     “ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.

     “ Tax Driven Lease Transaction ” means (i) the DAFC Transactions and (ii) any transaction pursuant to which a Combined Entity conveys record title to a real property asset to a governmental entity and then leases such asset back from the governmental entity for the purposes of effecting a reduction in real property taxes where (i) the conveying Combined Entity can repurchase the conveyed asset at any time for nominal consideration, (ii) no Indebtedness is incurred by any Combined Entity under GAAP; provided , that , if the structure of any such transaction requires the issuance of bonds by the applicable governmental entity, such bonds are purchased by a Combined Entity as consideration for the applicable real property transfer and the amounts receivable by a Combined Entity on such bonds equals the rent payable under the applicable Lease, (iii) no net payments are required to be made to any third party as a result of such transaction and the corresponding Tax Driven Lease Transaction Documents (other than the reduced real property taxes and customary closing costs and fees), and (iv) such transaction, however structured, is consummated on terms substantially similar to the DAFC Transactions.

     “ Tax Driven Lease Transaction Documents ” means (i) the DAFC Indentures and DAFC Leases and (ii) with respect to any Tax Driven Lease Transaction other than the DAFC Transactions, leases, indentures and such other documents that are customarily required for a transaction of that type and that satisfy the requirements of the definition of Tax Driven Lease Transaction.

     “ Term Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(b) .

     “ Term Commitment ” means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01(b) or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

     “ Term Facility ” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term Commitments of all Term Lenders at such time and (b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.

     “ Term Lender ” means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term Loans at such time.

     “ Term Loan ” has the meaning specified in Section 2.01(b) .

     “ Term Loan Notice ” means a notice of (a) a Term Borrowing, (b) a conversion of Term Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans made under the Term Loan Facility, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit B .

     “ Term Note ” means a promissory note made by the Borrower or any Co-Borrower in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit D-2 , together with each Co-Borrower Joinder Agreement executed by any Co-Borrower, to the extent the same has not been terminated pursuant to Section 6.12 hereof.

     “ Terminus Project ” means the project commonly known as “Terminus 100” located at 3280 Peachtree Road in Atlanta, Georgia; provided , however , the Terminus Project does not include the other land at 3280 Peachtree Street and adjacent thereto owned by the Borrower or its Consolidated Entities, the air rights above the parking structure which may be used for future development, or the parking within the parking structure being developed which will serve such potential future development above the parking structure.

     “ Threshold Amount ” means $10,000,000.

     “ Total Assets ” means, as of any calculation date, the sum of (a) the Value of Income Producing Assets for all such assets of the Combined Parties, plus (b) the Value of Liquid Assets of the Combined Parties, plus (c) the Value of Non-Income Producing Assets of the Combined Parties, that are not Land and Condominium Assets, plus (d) the Value of Non-Income Producing Assets of the Combined Parties that are Land and Condominium Assets; provided, however, that in calculating Total Assets the sum of items (c) and (d) shall be reduced to the extent necessary (with a corresponding reduction in the sum of items (a), (b), (c) and (d)) to establish that the sum of items (c) and (d) shall not exceed fifty percent (50%) of the sums of items (a), (b), (c) and (d); provided , further, that in calculating Total Assets, item (d) shall be reduced to the extent necessary (with a corresponding reduction in the sum of items (a), (b), (c) and (d), to establish that item (d) shall not exceed twenty-five percent (25%) of the sum of items (a), (b), (c) and (d).

     “ Total Debt ” means, as of any calculation date, for the Combined Parties (reduced to the extent necessary to reflect the portion thereof not attributable to Borrower’s direct and indirect ownership interest), the sum of (without duplication): (a) all outstanding Indebtedness for Money Borrowed; (b) all Capital Lease Obligations, and (c) all obligations constituting Monetized Guarantees of such Persons; provided , however , that in calculating the Total Debt of each Consolidated Entity and Unconsolidated Entity, the amount of the items described in clauses (a), (b) and (c) above of such Consolidated Entity and Unconsolidated Entity shall be multiplied by the percentage of the Borrower’s direct and indirect ownership interest in such Consolidated Entity and Unconsolidated Entity. Total Debt shall not include any such obligation of

Investment Entities except, for clarification purposes, to the extent any Consolidated Entity is liable for the same (disregarding any Consolidated Entity’s liability with respect to customary recourse carve-outs applicable to any nonrecourse secured Indebtedness) and disregarding any general partnership liability of the Designated Entities.

     “ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

     “ Total Revolving Credit Outstanding ” means the aggregate Outstanding Amount of all Revolving Credit Loans and all L/C Obligations.

     “ Trust Preferred Securities ” means trust preferred securities issued by a Trust Preferred Securities Issuer, the proceeds of which will be used to make loans to the Borrower or a Consolidated Entity.

     “ Trust Preferred Securities Issuer ” means a special purpose entity of which the Borrower or any Consolidated Entity owns 100% of the common interests, which special purpose entity is established for the purpose of issuing such trust preferred securities and using the proceeds of such issuance to make loans to the Borrower or a Consolidated Entity.

     “ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

     “ Unconsolidated Entities ” means, as of any date of determination, those Persons in which the Borrower or any of the Consolidated Entities owns some portion of Capital Stock and which are not consolidated with the Borrower on the financial statements of the Borrower in accordance with GAAP. Unconsolidated Entities shall not include Investment Entities.

     “ Unencumbered Properties ” means (i) all real property assets owned by the Borrower or the Consolidated Entities that are not subject to any Liens other than Permitted Liens and are located in the United States of America and (ii) the 191 Peachtree Building, the Terminus Project and any other asset that is the subject of a Tax Driven Lease Transaction, for so long as such properties are subject to Tax Driven Lease Transaction Documents and are not subject to any Liens other than Permitted Liens.

     “ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

     “ United States ” and “ U.S. ” mean the United States of America.

     “ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .

     “ Unsecured Debt ” means, as of any date, the aggregate of all Indebtedness for Money Borrowed of the Borrower and the Consolidated Entities that was incurred, and continues to be outstanding, without granting a Lien (other than Permitted Liens not described in clauses (a) or (f) of such definition) as security for such Indebtedness for Money Borrowed. Unsecured Debt shall not include any such obligations of Unconsolidated Entities or Investment Entities except, for clarification purposes, to the extent any Consolidated Entity is liable for the same (disregarding any liability with respect to customary recourse carve-outs applicable to any nonrecourse secured obligations and disregarding any general partnership liability of the Designated Entities). For clarification purposes, (a) any unsecured guaranty given by the Borrower or any Consolidated Entity of secured obligations of a Person who is not the Borrower or a Consolidated Entity constitutes Unsecured Debt of the Borrower or such Consolidated Entity giving the guaranty, (b) any unsecured guaranty given by the Borrower or any Consolidated Entity of the secured obligations of the Borrower or another Consolidated Entity constitutes the Secured Debt of the Borrower or the Consolidated Entity directly incurring the secured obligations and shall not be calculated as part of the obligations (either secured or unsecured) of the Borrower or such Consolidated Entity giving the guaranty (except to the extent that the relevant calculation does not otherwise account for the obligations of the Borrower or the Consolidated Entity directly incurring the underlying secured obligations, in which case it shall constitute the Unsecured Debt of the Borrower or the Consolidated Entity giving the guaranty), (c) any unsecured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of a Person who is not the Borrower or a Consolidated Entity constitutes the Unsecured Debt of the Borrower or such Consolidated Entity giving the guaranty, (d) any unsecured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of the Borrower or another Consolidated Entity constitutes the Unsecured Debt of the Borrower or the Consolidated Entity directly incurring such obligations and shall not be calculated as part of the obligations (either secured or unsecured) of the Borrower or such Consolidated Entity giving the guaranty (except to the extent that the relevant calculation does not otherwise account for the obligations of the Borrower or the Consolidated Entity directly incurring the underlying unsecured obligations, in which case it shall constitute the Unsecured Debt of the Borrower or the Consolidated Entity giving the guaranty), (e) any secured guaranty given by the Borrower or any Consolidated Entity of secured obligations of a Person who is not the Borrower or a Consolidated Entity constitutes secured debt of the Borrower or such Consolidated Entity giving the guaranty, (f) any secured guaranty given by the Borrower or any Consolidated Entity of the secured obligations of the Borrower or another Consolidated Entity constitutes the secured debt of the Borrower or the Consolidated Entity directly incurring the secured obligations and shall not be calculated as part of the obligations (either secured or unsecured) of the Borrower or such Consolidated Entity giving the guaranty (except to the extent that the relevant calculation does not otherwise account for the obligations of the Borrower or the Consolidated Entity directly incurring the underlying secured obligations, in which case it shall constitute the secured debt of the Borrower or the Consolidated Entity giving the guaranty), (g)

any secured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of a Person who is not the Borrower or a Consolidated Entity constitutes the secured debt of the Borrower or such Consolidated Entity giving the guaranty, and (h) any secured guaranty given by the Borrower or any Consolidated Entity of the unsecured obligations of the Borrower or another Consolidated Entity constitutes the secured debt of the Borrower or such Consolidated Entity giving the guaranty and shall not be calculated as part of the obligations (either secured or unsecured) of the Borrower or the Consolidated Entity directly incurring such obligations (except to the extent that the relevant calculation does not otherwise account for the obligations of the Borrower or such Consolidated Entity giving the guaranty, in which case it shall constitute the Unsecured Debt of the Borrower or the Consolidated Entity directly incurring the underlying unsecured obligations). For purposes of calculating the financial covenants contained herein, obligations of the Borrower or any Consolidated Entity pursuant to the terms of any letter of credit shall be treated in the same manner as a guaranty.

     “ Unused Fee ” has the meaning set forth in Section 2.09(a) .

     “ Value of Income Producing Assets ” means, as of any date, the aggregate value of each Income Producing Asset existing as of such date, where the value of each such Income Producing Asset equals: the product of (a) the Adjusted Consolidated EBITDA for the most recent calendar quarter allocable to such Income Producing Asset, (i) multiplied by four (4), (ii) then, divided by the Applicable Capitalization Rate, multiplied by (b) (i) if such asset is owned by the Borrower or any Consolidated Entity, 100% (adjusted, in the case of such an asset owned by a Consolidated Entity, appropriately to reflect the relative direct and indirect economic interest (calculated as a percentage) of the Borrower in such Consolidated Entity determined in accordance with the applicable provisions of the organizational documents of such Consolidated Entity), and (ii) if such asset is owned by an Unconsolidated Entity, the percentage of the Borrower’s direct or indirect ownership in the Unconsolidated Entity owning such asset; provided , however , that (A) if any Income Producing Asset has been an Income Producing Asset for a period of less than four (4) calendar quarters, then such Income Producing Asset will be assigned a value which is the greater of (i) the value of such asset determined in accordance with clauses (a) and (b) above and (ii) the value of such asset determined in accordance with clauses (a) and (b) of the definition of “Value of Non-Income Producing Assets” and (B) notwithstanding anything in this Agreement to the contrary, the 191 Peachtree Building shall be assigned a value which is the greater of (i) the value of such asset determined in accordance with clauses (a) and (b) above and (ii) the value of such asset determined in accordance with clauses (a) and (b) of the definition of “Value of Non-Income Producing Assets”; provided , that at any time the Borrower may by delivery of written notice to the Administrative Agent elect to have the provisions of this clause (B) and of Section 7.03(a)(ii)(A)(2) no longer apply, in which event the 191 Peachtree Building shall be assigned a value as determined pursuant to this Agreement at all times thereafter (without regard to the terms of this clause (B) and Section 7.03(a)(ii)(A)(2)).

     “ Value of Liquid Assets ” means, as of any date, the sum of (a) the amount of cash included in Liquid Assets, plus (b) an amount equal to (i) the market value of any marketable

securities included in Liquid Assets, less (ii) to the extent not included in Total Debt, any margin indebtedness with respect thereto, plus (c) the book value of notes receivable secured by a mortgage instrument with a valid and enforceable first priority mortgage lien on a fee or leasehold interest held by the debtor in the applicable real estate assets and included in Liquid Assets (where the fair market value of such real estate assets is greater than or equal to 110% of the amount of indebtedness secured thereby); provided , that with respect to each asset the respective amounts used in calculating clauses (a), (b) and (c) above shall be multiplied by (1) if such asset is owned by the Borrower or any Consolidated Entity, 100% (adjusted, in the case of such an asset owned by a Consolidated Entity, appropriately to reflect the relative direct and indirect economic interest (calculated as a percentage) of the Borrower in such Consolidated Entity determined in accordance with the applicable provisions of the organizational documents of such Consolidated Entity), and (2) if such asset is owned by an Unconsolidated Entity, the percentage of the Borrower’s direct or indirect ownership in the Unconsolidated Entity owning such asset.

     “ Value of Non-Income Producing Assets ” means on any calculation date, the aggregate value of all Non-Income Producing Assets, where the value of each such Non-Income Producing Asset is equal to the product of (a) the cost of such asset reported to the date of calculation in accordance with GAAP, times (b) (i) if such asset is owned by the Borrower or any Consolidated Entity, 100% (adjusted, in the case of such an asset owned by a Consolidated Entity, appropriately to reflect the relative direct and indirect economic interest (calculated as a percentage) of the Borrower in such Consolidated Entity determined in accordance with the applicable provisions of the organizational documents of such Consolidated Entity), or (ii) if such asset is owned by an Unconsolidated Entity, the percentage of the Borrower’s direct or indirect ownership in the Unconsolidated Entity owning such asset; provided , however , that the Wildwood, North Point and Paulding undeveloped land and pad sites located at Ten Peachtree Place, One Georgia Center and Points at Waterview held by the Borrower or its Consolidated Entities shall be valued at a total of $87,332,000 for purposes of this definition as of closing ($16,400,000 of such amount is attributable to the Wildwood undeveloped land, $18,184,000 to the North Point undeveloped land, $37,548,000 to the Paulding undeveloped land, $8,000,000 to the pad site at Ten Peachtree Place, $6,000,000 to the pad site at One Georgia Center and $1,2000,000 to the pad site at Points at Waterview); provided further , that in the event any parcels of such undeveloped land are sold, such aggregate value amount shall be reduced according to the value attributed to the undeveloped land sold, or, in the event that only a portion of any such undeveloped land is sold, to be reduced pro rata according to square footage or acreage, as applicable), subject to the right of the Administrative Agent to request the re-appraisal of one or more of such properties in the event that the Administrative Agent reasonably believes that the value thereof has been materially reduced for any reason.

      1.02 Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

     (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

     (b) (i) The words “ herein ,” “ hereto ,” “ hereof ” and “ hereunder ” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

     (iii) The term “ including ” is by way of example and not limitation.

     (iv) The term “ documents ” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

     (c) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

     (d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

      1.03 Accounting Terms .

     (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP (except as provided in this Agreement with respect to Investment Entities) applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

     (b) 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 Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower 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 Required Lenders); provided 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 Borrower shall provide to the Administrative 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.

      1.04 Rounding . Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the

other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

      1.05 References to Agreements and Laws . Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

      1.06 Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

      1.07 Letter of Credit Amounts . Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at such time.

ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS

      2.01 Loans .

     (a)  Revolving Credit Loans . Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “ Revolving Credit Loan ”) to the Borrower and/or the Co-Borrower identified by Borrower in the applicable Revolving Credit Loan Notice from time to time (on any Business Day during the Availability Period) in an aggregate amount not to exceed at any time the amount of such Lender’s Revolving Credit Commitment; provided , however , that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment and (iii) the aggregate Unsecured Debt of the Borrower and the Consolidated Entities (including any requested or pending Credit Extension) shall not exceed the amount permitted pursuant to Section 7.03(a)(ii) hereof. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower and Co-Borrowers may borrow under this Section 2.01(a) , prepay under Section 2.05 , and reborrow under this Section 2.01(a) . Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

     (b)  Term Loans . Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan on the Closing Date to the Borrower and/or any Co-Borrower identified by the Borrower in an amount not to exceed such Term Lender’s Term Commitment (each such loan, a “Term Loan”). The Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Pro Rata Share of the Term Facility. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

      2.02 Borrowings, Conversions and Continuations of Loans .

     (a) Each Term Borrowing and each Revolving Credit Borrowing, each conversion of Term Loans and Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon irrevocable notice from the Borrower (on its own behalf or on behalf of the applicable Co-Borrower) to the Administrative Agent, which may be given by telephone ( provided that such telephonic notice complies with the information requirements of the form of an applicable Loan Notice attached hereto). Each such notice must be received by the Administrative Agent not later than 1:00 p.m. (i) three Business Days prior to the requested date of any Term Borrowing or Revolving Credit Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and (ii) on the requested date of any Term Borrowing or Revolving Credit Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Term Borrowing and each Revolving Credit Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower or a Co-Borrower is requesting a Term Borrowing or a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the applicable Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Term Loans or Revolving Credit Loans to be borrowed, converted or continued, (iv) the Type of Term Loan or Revolving Credit Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Eurodollar Rate Loans with an interest period of one month. Any such automatic conversion to Eurodollar Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. For the avoidance of doubt and notwithstanding anything contained herein to the contrary, a Swing Line Loan may not be converted into a

Eurodollar Rate Loan (but may be converted to a Revolving Credit Loan, which can be either a Base Rate Loan or a Eurodollar Rate Loan).

     (b) Following receipt of a Term Loan Notice or a Revolving Credit Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Term Loans or Revolving Credit Loans, and if notice of a conversion or continuation is not provided by the Borrower by 1:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Eurodollar Rate Loans described in the preceding subsection. In the case of a Term Borrowing or Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 p.m. on the Business Day specified in the applicable Loan Notice for notices related to Eurodollar Rate Loans or notices related to Base Rate Loans and given by the Borrower on or prior to 3:00 p.m. on the day prior to the requested date for such Credit Extension or 3:00 p.m. on the Business Day specified in the applicable Loan Notice for notices related to Base Rate Loans delivered after such time; provided, in each case, that nothing contained in this sentence shall be deemed to alter the requirements contained in the previous sentence for timely delivery of notices relating to Base Rate Loans or Eurodollar Rate Loans. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower or the applicable Co-Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower or the applicable Co-Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower (on its own behalf or on behalf of the applicable Co-Borrower).

     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.

     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

     (e) After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to Term Loans. After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be !

more than fifteen (15) Interest Periods in effect with respect to the Revolving Credit Facility. No more than eight (8) Revolving Credit Borrowings may be initiated in any given calendar month.

     (f) Any Revolving Credit Loan Notice or Term Loan Notice identifying a Co-Borrower as the party to whom the applicable Revolving Credit Loan or Term Loan should be directed may designate such Co-Borrower as the “primary obligor” with respect to such Loan and amounts payable with respect thereto. Such designation, however, shall not prevent the Borrower, each other Co-Borrower and each Guarantor hereunder from remaining liable for the full and final repayment of such Loan and such other amounts and for the full and final repayment of the Obligations as required pursuant to the terms hereof and the Borrower, each Co-Borrower and each Guarantor hereby acknowledges and agrees that each of them shall be and shall remain liable for the full and final repayment of each Revolving Credit Loan or Term Loan, as applicable, made pursuant to the terms hereof in accordance with this Agreement, regardless of the party to whom such Revolving Credit Loan or Term Loan, as applicable, is funded and regardless of whether a specific party is designated as the “primary obligor” with respect thereto.

      2.03 Letters of Credit .

     (a)  The Letter of Credit Commitment .

     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Cash Collateral Date, to issue Letters of Credit for the account of the Borrower, any Consolidated Entity or any Unconsolidated Entity, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower, any Consolidated Entity or any Unconsolidated Entity and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Commitments, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit and (z) the aggregate Unsecured Debt of the Borrower and the Consolidated Entities (including any requested or pending Credit Extension) shall not exceed the amount permitted pursuant to Section 7.03(a)(ii) hereof. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that are expiring or have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

     (ii) The L/C Issuer shall not issue any Letter of Credit if:

     (A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Credit Lenders have approved such expiry date; or

     (B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date; or

     (C) the requested Letter of Credit is not a standby letter of credit.

     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

     (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit or request that the L/C Issuer refrain from the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

     (B) the issuance of such Letter of Credit would violate any Laws or one or more policies of the L/C Issuer;

     (C) such Letter of Credit is to be denominated in a currency other than Dollars;

     (D) such Letter of Credit contains any provision for automatic reinstatement of the stated amount after any drawing thereunder; or

     (E) a default of any Revolving Credit Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the L/C Issuer’s risk with respect to such Revolving Credit Lender.

     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

     (b)  Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be

received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.

     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit , that one or more of the applicable conditions contained in Article IV shall not then be satisfied, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Consolidated Entity or Unconsolidated Entity) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s Pro Rata Share times the amount of such Letter of Credit.

     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer shall agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”) so long as no Default exists on the renewal date or would be caused by such renewal; provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the

time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or any Loan Party that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.

     (iv) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder that occurs prior to the Letter of Credit Cash Collateral Date (each, an “ Auto-Reinstatement Letter of Credit ”). Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied and, in each case, directing the L/C Issuer not to permit such reinstatement.

     (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

     (c)  Drawings and Reimbursements; Funding of Participations .

     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Revolving Credit Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Revolving Credit Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

     (ii) Each Revolving Credit Lender (including the Revolving Credit Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan under the Revolving Credit Facility to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.

     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall (except to the extent such Unreimbursed Amount was not refinanced as a result of the failure of Revolving Credit Lenders to fund a Revolving Credit Loan in accordance with the terms and conditions set forth herein) bear interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .

     (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the L/C Issuer.

     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Revolving Credit Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

     (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the L/C Issuer shall be entitled to recover from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

     (d)  Repayment of Participations .

     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Revolving Credit Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Credit

Lender its Pro Rata Share thereof in the same funds as those received by the Administrative Agent.

     (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Credit Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.

     (e)  Obligations Absolute . The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

     (ii) the existence of any claim, counterclaim, set-off, defense (other than a defense of payment) or other right that the Borrower or any Consolidated Entity may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

     (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

     (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Consolidated Entity;

in each case, to the extent not resulting from the gross negligence or willful misconduct of the L/C Issuer.

     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

     (f)  Role of L/C Issuer . Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy (other than conformance to the terms of the Letter of Credit) of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Revolving Credit Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Revolving Credit Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower, Consolidated Entities or Unconsolidated Entities which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a 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.

     (g) Cash Collateral . Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Cash Collateral Date, any Letter of Credit for any reason remains outstanding and partially or wholly undrawn,

the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the Letter of Credit Cash Collateral Date). Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03 , Section 2.05 and Section 8.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of America.

     (h)  Applicability of ISP . Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.

     (i)  Letter of Credit Fees . The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit Fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate for the Revolving Credit Facility times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit). Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date after the Closing Date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate for the Revolving Credit Facility during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate for the Revolving Credit Facility separately for each period during such quarter that such Applicable Rate for the Revolving Credit Facility was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Credit Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

     (j) Fronting Fee and Processing Charges Payable to L/C Issuer . The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee for each Letter of Credit equal to 0.125% per annum times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit). Such fronting fee for each Letter of Credit shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter within five (5) days of demand. In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such

customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

     (k)  Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Documents, the terms hereof shall control. Without limiting the foregoing, this Agreement shall govern the reimbursement of draws under Letters of Credit.

     (l)  Letters of Credit Issued for Consolidated Entities/Unconsolidated Entities . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Consolidated Entity or Unconsolidated Entity, the Borrower shall (i) be required to sign the applicable Letter of Credit Application and (ii) be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any Consolidated Entity and/or any Unconsolidated Entity inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Persons.

      2.04 Swing Line Loans .

     (a)  The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.04 , to make loans (each such loan, a “ Swing Line Loan ”) to the Borrower and/or the Co-Borrower identified by Borrower in the applicable Swing Line Loan Notice from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment and (iii) the aggregate Unsecured Debt of the Borrower and the Consolidated Entities (including any requested or pending Credit Extension) shall not exceed the amount permitted pursuant to Section 7.03(a)(ii) hereof, and provided , further , that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower and Co-Borrowers may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 . Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Credit Lender’s Pro Rata Share times the amount of such Swing Line Loan.

     (b)  Borrowing Procedures . Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent (on Borrower’s own behalf or on behalf of a Co-Borrower), which may be given by telephone (provided that such telephonic notice complies with the informational requirements of the form of Swing Line Loan Notice attached hereto). Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 3:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 5:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 5:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower or the applicable Co-Borrower.

     (c)  Refinancing of Swing Line Loans .

     (i) The Swing Line Lender at any time five (5) or more Business Days after the making of a Swing Line Loan and in its sole and absolute discretion may request, on behalf of the Borrower or the applicable Co-Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Revolving Credit Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Revolving Credit Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02 . The Swing Line Lender shall furnish the Borrower with a copy of the applicable Revolving Credit Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Revolving Credit Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Revolving Credit Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Revolving Credit Lender that so makes funds available shall be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the Borrower or the applicable Co-Borrower in

such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

     (iii) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the Swing Line Lender, the Borrower, any Co-Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 . No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

     (d)  Repayment of Participations .

     (i) At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such

Revolving Credit Lender its Pro Rata Share of such payment thereof in the same funds as those received by the Swing Line Lender.

     (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender.

     (e)  Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Credit Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.

     (f)  Payments Directly to Swing Line Lender . The Borrower shall (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower may make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

     (g)  Swing Line Loans to Co-Borrowers . Any Swing Line Loan Notice identifying a Co-Borrower as the party to whom the applicable Swing Line Loan should be directed may designate such Co-Borrower as the “primary obligor” with respect to such Swing Line Loan and amounts payable with respect thereto. Such designation, however, shall not prevent the Borrower, each other Co-Borrower and each Guarantor hereunder from remaining liable for the full and final repayment of such Swing Line Loan and such other amounts and for the full and final repayment of the Obligations as required pursuant to the terms hereof and the Borrower, each Co-Borrower and each Guarantor hereby acknowledges and agrees that each of them shall be and shall remain liable for the full and final repayment of each Swing Line Loan made pursuant to the terms hereof in accordance with this Agreement, regardless of the party to whom such Swing Line Loan is funded and regardless of whether a specific party is designated as the “primary obligor” with respect thereto.

      2.05 Prepayments .

     (a) The Borrower (and the Co-Borrowers) shall be permitted to prepay the Loans in accordance with the following terms and conditions:

     (i) The Borrower (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower may, upon notice to the Administrative Agent, at any time or from time to time (A) voluntarily prepay Base Rate Loans in whole

or in part without premium or penalty and (B) voluntarily prepay Eurodollar Rate Loans in whole or in part on the last day of the applicable Interest Period without premium or penalty; provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m. (A) one (1) Business Day prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (2) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (3) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and whether the Loans to be prepaid are Term Loans or Revolving Credit Loans (or any applicable combination thereof) (and in the absence of any designation in such notice as to which Facility to prepay, prepayment amounts shall be applied to Revolving Credit Loans).

     (ii) The Borrower (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower may voluntarily prepay Eurodollar Rate Loans in whole or in part on any date other than the last day of the Interest Period applicable thereto without premium; provided that the Borrower shall deliver to the Administrative Agent a timely notice of prepayment in accordance with clause (a) above and pay any “breakage” charges and increased costs or charges incurred by the Lenders as the result of such prepayment pursuant to Section 3.05 .

In the case of any prepayment made or to be made in connection with subclauses (i) or (ii) above: (A) the Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice with respect thereto, and of the amount of such Lender’s Pro Rata Share of such proposed prepayment; (B) if such notice is given by the Borrower (whether on its own behalf or on behalf of any Co-Borrower) or the applicable Co-Borrower, the Borrower (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; (C) any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05 ; and (D) each such prepayment shall be applied to the applicable Loans of the Lenders in accordance with their respective Pro Rata Shares. The failure of the Borrower or the applicable Co-Borrower to make a prepayment hereunder following the delivery of a notice of a pending prepayment pursuant to the provisions contained in this clause (a) shall not constitute a Default or Event of Default hereunder; provided, however, that the Administrative Agent shall not be required to accept any prepayment offered by the Borrower or the applicable Co-Borrower hereunder unless timely notice thereof has been given in accordance with (and to the extent required by) this clause (a) and Borrower’s or the applicable Co-Borrower’s prepayment is accompanied by any “breakage” charges and all other increased costs or charges incurred by the Lenders as the result of such prepayment.

     (b) The Borrower (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in

whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower (whether on its own behalf or on behalf of any Co-Borrower) or the applicable Co-Borrower, the Borrower (on its own behalf or on behalf of the applicable Co-Borrower(s)) or the applicable Co-Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. The failure of the Borrower or the applicable Co-Borrower to make a prepayment hereunder following the delivery of a notice of a pending prepayment pursuant to the provisions contained in this clause (b) shall not constitute a Default or Event of Default hereunder; provided , however , that the Ad