FORM OF AMENDED AND RESTATED REVOLVING CREDIT NOTE

Exhibit 10.3

EXHIBIT A

FORM OF AMENDED AND RESTATED REVOLVING CREDIT NOTE

 

FOR VALUE RECEIVED, the undersigned (collectively, “Maker”), hereby promise to pay to                                          (“Payee”), or order, in accordance with the terms of that certain Credit Agreement, dated as of August 7, 2007, as from time to time in effect, among Safari Ventures LLC, the Subsidiary Borrowers, KeyBank National Association, for itself and as Agent, and such other Lenders as may be from time to time named therein (the “Credit Agreement”), to the extent not sooner paid, on or before the Revolving Credit Maturity Date, the principal sum of             ($            ), or such amount as may be advanced by the Payee under the Credit Agreement as a Revolving Credit Loan with daily interest from the date thereof, computed as provided in the Credit Agreement, on the principal amount hereof from time to time unpaid, at a rate per annum on each portion of the principal amount which shall at all times be equal to the rate of interest applicable to such portion in accordance with the Credit Agreement, and with interest on overdue principal and, to the extent permitted by applicable law, on overdue installments of interest and late charges at the rates provided in the Credit Agreement. Interest shall be payable on the dates specified in the Credit Agreement, except that all accrued interest shall be paid at the stated or accelerated maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

Payments hereunder shall be made to the Agent for the Payee at 127 Public Square, Cleveland, Ohio 44114-1306, or at such other address as Agent may designate from time to time.

This Note is one of one or more Revolving Credit Notes evidencing borrowings under and is entitled to the benefits and subject to the provisions of the Credit Agreement. The principal of this Note may be due and payable in whole or in part prior to the Revolving Credit Maturity Date and is subject to mandatory prepayment in the amounts and under the circumstances set forth in the Credit Agreement, and may be prepaid in whole or from time to time in part, all as set forth in the Credit Agreement.

Notwithstanding anything in this Note to the contrary, all agreements between the undersigned Maker and the Lenders and the Agent, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of acceleration of the maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or received by the Lenders exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum amount permitted under applicable law; and if from any circumstance the Lenders shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the principal balance of the Obligations of the undersigned Maker and to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations of the undersigned Maker, such excess shall be refunded to the undersigned

 

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Maker. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal of the Obligations of the undersigned Maker (including the period of any renewal or extension thereof) so that the interest thereon for such full period shall not exceed the maximum amount permitted by applicable law. This paragraph shall control all agreements between the undersigned Maker and the Lenders and the Agent.

In case an Event of Default shall occur, the entire principal amount of this Note may become or be declared due and payable in the manner and with the effect provided in said Credit Agreement.

This Note shall, pursuant to New York General Obligations Law Section 5-1401, be governed by the laws of the State of New York.

The undersigned Maker and all guarantors and endorsers hereby waive presentment, demand, notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of acceleration of the indebtedness evidenced hereby and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Note, except as specifically otherwise provided in the Credit Agreement, and assent to extensions of time of payment or forbearance or other indulgence without notice.

This Note is delivered in amendment and restatement of the Original Note.

IN WITNESS WHEREOF, the undersigned has by its duly authorized officer executed this Note on the day and year first above written.

 

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EXHIBIT B

FORM OF SWING LOAN NOTE

 

FOR VALUE RECEIVED, the undersigned (collectively, “Maker”), hereby promise to pay to                                          (“Payee”), or order, in accordance with the terms of that certain Credit Agreement, dated as of August 7, 2007, as from time to time in effect, among Safari Ventures LLC, the Subsidiary Borrowers, KeyBank National Association, for itself and as Agent, and such other Lenders as may be from time to time named therein (the “Credit Agreement”), to the extent not sooner paid, on or before the Revolving Credit Maturity Date, the principal sum of Twenty-Five Million and No/100 Dollars ($25,000,000.00), or such amount as may be advanced by the Payee under the Credit Agreement as a Swing Loan with daily interest from the date thereof, computed as provided in the Credit Agreement, on the principal amount hereof from time to time unpaid, at a rate per annum on each portion of the principal amount which shall at all times be equal to the rate of interest applicable to such portion in accordance with the Credit Agreement, and with interest on overdue principal and, to the extent permitted by applicable law, on overdue installments of interest and late charges at the rates provided in the Credit Agreement. Interest shall be payable on the dates specified in the Credit Agreement, except that all accrued interest shall be paid at the stated or accelerated maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

Payments hereunder shall be made to the Agent for the Payee at 127 Public Square, Cleveland, Ohio 44114-1306, or at such other address as Agent may designate from time to time.

This Note is one of one or more Swing Loan Notes evidencing borrowings under and is entitled to the benefits and subject to the provisions of the Credit Agreement. The principal of this Note may be due and payable in whole or in part prior to the Revolving Credit Maturity Date and is subject to mandatory prepayment in the amounts and under the circumstances set forth in the Credit Agreement, and may be prepaid in whole or from time to time in part, all as set forth in the Credit Agreement.

Notwithstanding anything in this Note to the contrary, all agreements between the undersigned Maker and the Lenders and the Agent, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of acceleration of the maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or received by the Lenders exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum amount permitted under applicable law; and if from any circumstance the Lenders shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the principal balance of the Obligations of the undersigned Maker and to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations of the undersigned Maker, such excess shall be refunded to the undersigned

 

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Maker. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal of the Obligations of the undersigned Maker (including the period of any renewal or extension thereof) so that the interest thereon for such full period shall not exceed the maximum amount permitted by applicable law. This paragraph shall control all agreements between the undersigned Maker and the Lenders and the Agent.

In case an Event of Default shall occur, the entire principal amount of this Note may become or be declared due and payable in the manner and with the effect provided in said Credit Agreement.

This Note shall, pursuant to New York General Obligations Law Section 5-1401, be governed by the laws of the State of New York.

The undersigned Maker and all guarantors and endorsers hereby waive presentment, demand, notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of acceleration of the indebtedness evidenced hereby and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Note, except as specifically otherwise provided in the Credit Agreement, and assent to extensions of time of payment or forbearance or other indulgence without notice.

IN WITNESS WHEREOF, the undersigned has by its duly authorized officer executed this Note on the day and year first above written.

 

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EXHIBIT C

FORM OF AMENDED AND RESTATED TERM LOAN NOTE

 

FOR VALUE RECEIVED, the undersigned (collectively, “Maker”), hereby promise to pay to                                          (“Payee”), or order, in accordance with the terms of that certain Credit Agreement, dated as of August 7, 2007, as from time to time in effect, among Safari Ventures LLC, the Subsidiary Borrowers, KeyBank National Association, for itself and as Agent, and such other Lenders as may be from time to time named therein (the “Credit Agreement”), to the extent not sooner paid, on or before the Term Loan Maturity Date, the principal sum of             ($            ), or such amount as may be advanced by the Payee under the Credit Agreement as a Term Loan with daily interest from the date thereof, computed as provided in the Credit Agreement, on the principal amount hereof from time to time unpaid, at a rate per annum on each portion of the principal amount which shall at all times be equal to the rate of interest applicable to such portion in accordance with the Credit Agreement, and with interest on overdue principal and, to the extent permitted by applicable law, on overdue installments of interest and late charges at the rates provided in the Credit Agreement. Interest shall be payable on the dates specified in the Credit Agreement, except that all accrued interest shall be paid at the stated or accelerated maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

Payments hereunder shall be made to the Agent for the Payee at 127 Public Square, Cleveland, Ohio 44114-1306, or at such other address as Agent may designate from time to time.

This Note is one of one or more Term Loan Notes evidencing borrowings under and is entitled to the benefits and subject to the provisions of the Credit Agreement. The principal of this Note may be due and payable in whole or in part prior to the Term Loan Maturity Date and is subject to mandatory prepayment in the amounts and under the circumstances set forth in the Credit Agreement, and may be prepaid in whole or from time to time in part, all as set forth in the Credit Agreement.

Notwithstanding anything in this Note to the contrary, all agreements between the undersigned Maker and the Lenders and the Agent, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of acceleration of the maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or received by the Lenders exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum amount permitted under applicable law; and if from any circumstance the Lenders shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the principal balance of the Obligations of the undersigned Maker and to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations of the undersigned Maker, such excess shall be refunded to the undersigned

 

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Maker. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal of the Obligations of the undersigned Maker (including the period of any renewal or extension thereof) so that the interest thereon for such full period shall not exceed the maximum amount permitted by applicable law. This paragraph shall control all agreements between the undersigned Maker and the Lenders and the Agent.

In case an Event of Default shall occur, the entire principal amount of this Note may become or be declared due and payable in the manner and with the effect provided in said Credit Agreement.

This Note shall, pursuant to New York General Obligations Law Section 5-1401, be governed by the laws of the State of New York.

The undersigned Maker and all guarantors and endorsers hereby waive presentment, demand, notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of acceleration of the indebtedness evidenced hereby and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Note, except as specifically otherwise provided in the Credit Agreement, and assent to extensions of time of payment or forbearance or other indulgence without notice.

This Note is delivered in amendment and restatement of the Original Note.

IN WITNESS WHEREOF, the undersigned has by its duly authorized officer executed this Note on the day and year first above written.

 

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EXHIBIT D

FORM OF ASSIGNMENT OF LEASES AND RENTS

Tax Parcel Nos.                          

[This Assignment is exempt from recording tax pursuant to Va. Code Ann. Section 58.1-809.]

PREPARED BY AND AFTER

RECORDING, RETURN TO:

William F. Timmons, Esq.

McKenna Long & Aldridge LLP

303 Peachtree Street N.E., Suite 5300

Atlanta, Georgia 30308

 

ASSIGNMENT OF LEASES AND RENTS

THIS ASSIGNMENT OF LEASES AND RENTS (this “ Assignment ”) is made as of             , 2007, by                         , a Delaware limited liability company (“ Assignor ”), having its principal place of business at 1212 New York Avenue, N.W., Suite 900, Washington, D.C. 20005, to KEYBANK NATIONAL ASSOCIATION, a national banking association (“ KeyBank ”), as Agent for itself and each other lender (collectively, the “ Lenders ”) which is or may hereafter become a party to that certain Credit Agreement, dated as of the date hereof, by and among Safari Ventures LLC, a Delaware limited liability company (“ Parent Borrower ”), the Subsidiary Borrowers now or hereafter a party thereto (the “ Subsidiary Borrowers ”; Parent Borrower and the Subsidiary Borrowers are hereinafter collectively referred to as “ Borrowers ”), KeyBank, as Agent and the Lenders (as the same may be further varied, amended, restated, renewed, consolidated, extended or otherwise supplemented from time to time, the “ Credit Agreement ”) (KeyBank, in its capacity as Agent, is hereinafter referred to as “Agent”).

ASSIGNOR , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and AS ADDITIONAL SECURITY, does hereby presently, irrevocably and unconditionally GRANT, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER AND DELIVER to Agent, for the ratable benefit of the Lenders and the holders of any Hedge Obligations, as additional security, the entire lessor’s, landlord’s or licensor’s interest in and to all leases, subleases, tenant contracts, rental agreements, occupancy agreements or agreements of a similar nature, whether written or oral, now or hereafter affecting the Property (as defined in the [Amended and Restated] Deed of Trust and Security Agreement dated of even date herewith executed by Assignor to Commercial Title Group, Inc., a Virginia corporation as

“Trustee”, for the benefit of Agent and the Lenders (the “ Instrument ”)), or any part thereof, which Property includes that certain lot or piece of land, more particularly described in Exhibit A attached hereto, together with all lease, security, damage or other deposits and all guarantees of the foregoing and letters of credit or other security relating to the performance or obligations of any tenants, lessees or licensees thereunder (all of the leases and other agreements and guarantees described above together with all present and future leases and present and future agreements and any amendment, modification, extension or renewal of the same are hereinafter collectively referred to as the “ Leases ”);

TOGETHER WITH all rents, income, issues, revenues and profits arising from the Leases and renewals thereof and together with all rents, income, issues and profits from the use, enjoyment and occupancy of the Property (including, but not limited to, minimum rents, additional rents, percentage rents, deficiency rents, security deposits and liquidated damages following default under any Leases, all proceeds payable under any policy of insurance, all of Assignor’s rights to recover monetary amounts from any lessee under the Leases in bankruptcy including, without limitation, rights of recovery for use and occupancy and damage claims arising out of defaults under the Leases, including rejection of a Lease, together with any sums of money that may now or at any time hereafter be or become due and payable to Assignor by virtue of any and all lease termination payments, royalties, overriding royalties, bonuses, delay rentals and any other amount of any kind or character arising under any and all present and future oil, gas and mining Leases covering the Property or any part thereof, and all rents under and as defined in the Leases) (all of the rights described above hereinafter collectively referred to as the “ Rents ”).

THIS ASSIGNMENT is made for the purposes of additionally securing the following described indebtedness (collectively the “ Secured Obligations ”):

(a) The debt evidenced by (i) those certain [Amended and Restated] Revolving Credit Notes made by Borrowers to the order of one or more of the Lenders in the aggregate principal face amount of Two Hundred Seventy-Five Million and No/100 Dollars ($275,000,000.00), that certain Swing Loan Note made by Borrowers to the order of KeyBank in the principal face amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00), each of which has been issued pursuant to the Credit Agreement and each of which is due and payable in full on before             , 2010, unless extended as provided in the Credit Agreement, and those certain [Amended and Restated] Term Loan Notes made by Borrowers to the order of one or more of the Lenders in the aggregate principal face amount of Two Hundred Million and No/100 Dollars ($200,000,000.00), each of which has been issued pursuant to the Credit Agreement and each of which is due and payable in full on or before             , 2011, and (ii) each other note as may be issued under the Credit Agreement, each as originally executed, or if varied, extended, supplemented, consolidated, amended, replaced, renewed, modified or restated from time to time as so varied, extended, supplemented, consolidated, amended, replaced, renewed, modified or restated (collectively, the “Note”); provided, however, in no event shall the maximum aggregate principal amount of indebtedness under the Note exceed Four Hundred Seventy-Five Million and No/100 Dollars ($475,000,000.00);

(b) The payment, performance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, and of Borrowers in the Credit Agreement and in the other Loan Documents, including without limitation the obligation of Borrowers to reimburse Issuing Lender for any draws under the Letters of Credit;

 

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(c) Any and all additional advances made by Agent or any Lender to protect or preserve the Property or the lien and security title hereof in and to the Property, or for taxes, assessments or insurance premiums as hereinafter provided (whether or not Assignor is the owner of the Property at the time of such advances);

(d) Any and all other indebtedness, obligations and liabilities now or hereafter owing or to be performed by Borrowers to any Lender or Agent pursuant to the terms of the Credit Agreement or the other Loan Documents, whether now existing or hereafter arising or incurred, however evidenced or incurred, whether express or implied, direct or indirect, absolute or contingent, due or to become due, including, without limitation, all principal, interest, fees, expenses, yield maintenance amounts and indemnification amounts, and all renewals, modifications, consolidations, replacements and extensions thereof;

(e) The full and prompt payment and performance by Borrowers of each and all of the Hedge Obligations (as defined in the Credit Agreement); and

(f) The Enforcement Costs (as defined in the Instrument).

Assignor warrants to Agent that as of the date hereof (a) Assignor is the sole owner of the entire lessor’s interest in the Leases and the Rents; (b) the Leases have not been altered, modified or amended in any manner whatsoever except as disclosed to Agent and, to the best knowledge of Assignor, are valid, enforceable and in full force and effect; (c) neither the Leases nor the Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (d) none of the Rents have been collected for more than one (1) month in advance; (e) Assignor has full power and authority to execute and deliver this Assignment and the execution and delivery of this Assignment has been duly authorized and does not conflict with or constitute a default under any law, judicial order or other agreement affecting Assignor or the Property; and (f) there exist no known offsets or defenses to the payment of any portion of the Rents.

Assignor covenants with Agent that Assignor (a) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of the Leases as security for the Secured Obligations; (b) shall enforce the performance and observance of the obligations of the other parties to the Leases to be performed thereunder consistent with the provisions of the Credit Agreement; (c) will appear in and defend any action arising out of, or in any manner connected with, any of the Leases, or the obligations or liabilities of Assignor as the landlord, lessor or licensor thereof, or any tenant, lessee, licensee or any guarantor thereunder; (d) shall not collect any Rents more than one (1) month in advance; (e) shall not execute any other assignment of lessor’s interest in the Leases or the Rents; (f) shall execute and deliver at the request of Agent all such further assurances, confirmations or assignments in connection with the Property as Agent shall from time to time reasonably require; and (g) shall deliver to Agent executed copies of all Leases required to be delivered to Agent pursuant to the terms of the Credit Agreement.

 

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THIS ASSIGNMENT is made on the following terms, covenants and conditions:

1. Present Assignment . Assignor does hereby presently and unconditionally assign to Agent, Assignor’s right, title and interest in and to any and all Leases and Rents, it being intended by Assignor that this Assignment constitute a present assignment and not an agreement to assign. Assignor agrees to execute and deliver to Agent such additional instruments, in form and substance satisfactory to Agent, as may hereinafter be requested by Agent to further evidence and confirm said assignment. Such assignment to Agent shall not be construed to bind Agent to the performance of any of the covenants, conditions, or provisions contained in any of the Leases or otherwise to impose any obligation upon Agent. Agent is hereby granted and assigned by Assignor the right to enter the Property for the purpose of enforcing its interest in the Leases and the Rents, this Assignment constituting a present and unconditional assignment of the Leases and Rents. Assignor shall authorize and direct, and does hereby authorize and direct, each and every present and future tenant under the Leases to pay all Rents directly to Agent upon receipt of written demand from Agent. It is the intent of Assignor and Agent hereunder that the Rents hereby absolutely assigned are no longer, during the term of this Assignment, property of Assignor or property of any estate of Assignor as defined by 11 U.S.C. § 541, and shall not constitute collateral, cash or otherwise, of Assignor. Notwithstanding the provisions of this Paragraph 1, so long as no Event of Default has occurred and is continuing, Assignor shall have the right to act as lessor under the Leases to the extent not prohibited by the Credit Agreement.

2. License . Although this Assignment constitutes a present assignment of all Rents, so long as there shall exist no Event of Default under the Instrument or the Credit Agreement, Assignor shall have a license (revocable upon the occurrence of an Event of Default) to collect and receive the Rents as trustee for the benefit of Agent, and apply the Rents so collected to the Secured Obligations, to the extent then due and payable, then to the payment of normal and customary operating expenses for the Property which are then due and payable, with the balance, so long as no Event of Default has occurred, to the account of Assignor. Upon the occurrence of any Event of Default, the license granted in this Paragraph 2 shall automatically, without further act by Agent, cease and terminate, and thereafter, any Rents received by Assignor shall be held in trust for the benefit of, and shall be immediately remitted by Assignor to, Agent.

3. Remedies of Agent . If an Event of Default under the Instrument or the Credit Agreement shall have occurred and be continuing, Agent may collect and receive all the Rents, including those past due as well as those accruing thereafter, and, Assignor hereby authorizes Agent or Agent’s agents to collect the Rents and hereby directs such tenants, lessees and licensees of the Property to pay the Rents to Agent or Agent’s agents. Assignor agrees that each and every tenant, lessee and licensee of the Property may pay, and hereby irrevocably authorizes and directs each and every tenant, lessee and licensee of the Property to pay, the Rents to Agent or Agent’s agents on Agent’s written demand therefor (which demand may be made by Agent at any time after the occurrence of an Event of Default) without any obligation on the part of said tenant, lessee or licensee to inquire as to the existence of an Event of Default and notwithstanding any notice or claim of Assignor to the contrary, and Assignor agrees that Assignor shall have no right or claim against said tenant, lessee or licensee for or by reason of any Rents paid to Agent following receipt of such written demand. Anything in this Paragraph 3 to the contrary notwithstanding, Agent shall not be obligated to discharge or perform the duties of a landlord or lessor to any tenant or other occupant or incur any liability as a result of the

 

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exercise by Agent of its rights under this Assignment, and Agent shall be liable to account only for the rents, income, issues, profits and revenues actually received by Agent. In connection with any action taken by the Agent pursuant to this Paragraph 3, the Agent shall not be liable for any loss sustained by Assignor resulting from any act or omission of the Agent, including a loss arising from the ordinary negligence of the Agent, unless such loss is caused by its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction after the expiration of all applicable appeal periods, nor shall the Agent be obligated to perform or discharge any obligation, duty or liability of Assignor. Assignor hereby assents to, ratifies and confirms any and all actions of the Agent with respect to the Property taken under this Paragraph 3.

4. No Liability of Agent . The Agent is fully authorized to receive and receipt for said revenues and proceeds; to endorse and cash any and all checks and drafts payable to the order of Assignor or the Agent for the account of Assignor received from or in connection with said revenues or proceeds and apply the proceeds thereof to the payment of the Secured Obligations, when received, regardless of the maturity of any of the Loans or the Hedge Obligations, or any installment thereof; and to execute transfer and division orders in the name of Assignor, or otherwise, with warranties binding Assignor. The Agent shall not be liable for any delay, neglect, or failure to effect collection of any proceeds or to take any other action in connection therewith or hereunder; but shall have the right, at its election, in the name of Assignor or otherwise, to prosecute and defend any and all actions or legal proceedings deemed advisable by the Agent in order to collect such funds and to protect the interests of the Agent and/or Assignor, with all costs, expenses and reasonable attorney’s fees incurred in connection therewith being paid by Assignor.

5. Other Remedies and Non-Waiver . No right, power or remedy conferred upon or reserved to Agent by this Assignment is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of Agent or of any Lender to exercise any right, power or remedy accruing upon any default shall exhaust or impair any such right, power or remedy or shall be construed to be a waiver of any such default, or acquiescence therein; and every right, power and remedy given by this Assignment to Agent may be exercised from time to time and as often as may be deemed expedient by Agent. No consent or waiver, expressed or implied, by Agent to or of any breach or default by Assignor in the performance of the obligations thereof hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Assignor hereunder. Failure on the part of Agent to complain of any act or failure to act or to declare an Event of Default under the Instrument, the Credit Agreement or the other Loan Documents, irrespective of how long such failure continues, shall not constitute a waiver by Agent of its rights hereunder or impair any rights, powers or remedies of Agent consequent on any breach or default by Assignor. Nothing contained in this Assignment and no act done or omitted by Agent pursuant to the power and rights granted to Agent hereunder shall be deemed to be a waiver by Agent of its rights and remedies under the other Loan Documents and this Assignment is made and accepted without prejudice to any of the rights and remedies possessed by Agent under the terms thereof. The right of the Agent to collect the Rents and to enforce any other security thereof held by it may be exercised by Agent either prior to simultaneously with or subsequent to any action taken by it hereunder.

 

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6. Conflict with Credit Agreement Provisions . Assignor hereby acknowledges and agrees that, in the event of any conflict between the terms hereof and the terms of the Credit Agreement, the terms of the Credit Agreement shall control.

7. No Mortgagee in Possession . Nothing herein contained shall be construed as constituting Agent a “mortgagee in possession” in the absence of the taking of actual possession of the Property by Agent. In the exercise of the powers herein granted to Agent, no liability shall be asserted or enforced against Agent, all such liability being expressly waived and released by Assignor.

8. No Oral Change . This Assignment may not be modified, amended, waived, extended, changed, discharged or terminated orally, or by any act or failure to act on the part of Assignor or Agent, but only by an agreement in writing signed by the party against whom the enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

9. Certain Definitions . Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, words used in this Assignment may be used interchangeable in singular or plural form and the word “Assignor” shall mean “each Assignor and any subsequent owner or owners of the Property or any part thereof or any interest therein,” the word “Agent” shall mean “Agent and any subsequent beneficiary of the Instrument,” the word “Loans” shall have the meaning set forth in the Credit Agreement, the word “person” shall include an individual, corporation, partnership, trust, unincorporated association, government, governmental authority, and any other entity, the words “Property” shall include any portion of the Property and any interest therein; whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. All other capitalized terms used, but not defined herein, shall have the meaning set forth in the Credit Agreement.

10. Inapplicable Provisions . If any term, covenant or condition of this Assignment is held to be invalid, illegal or unenforceable in any respect, this Assignment shall be construed without such provision.

11. Counterparts . This Assignment may be executed in any number of counterparts each of which shall be deemed to be an original but all of which when taken together shall constitute one agreement.

12. GOVERNING LAW; JURISDICTION . THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS CHOSEN PURSUANT TO SECTION 3.04 OF THE INSTRUMENT. ASSIGNOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE CHOSEN PURSUANT TO SECTION 3.04 OF THE INSTRUMENT IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT.

 

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13. Successors and Assigns . Assignor may not assign its rights under this Assignment. Assignor hereby acknowledges and agrees that Agent may assign this Assignment without Assignor’s consent. Subject to the foregoing, this Assignment shall be binding upon, and shall inure to the benefit of, Assignor and the Agent and their respective successors and assigns.

14. Termination of Assignment . Upon payment in full of the Secured Obligations and the termination of the obligation of the Lenders to make additional Loans or issue Letters of Credit, and the delivery and recording of a satisfaction, release or discharge of the Instrument duly executed by Agent, this Assignment shall become and be void and of no effect as to the Leases and Rents from the Land no longer securing the Secured Obligations.

15. Indemnification . Assignor shall and does hereby agree to indemnify and to hold Agent, the Lenders and the holders of the Hedge Obligations harmless for, from and against any and all costs, expenses, claims, demands, liability, loss or damage (including all costs, expenses, and attorneys’ fees incurred in the defense thereof) asserted against, imposed on or incurred by Agent, the Lenders or holders of the Hedge Obligations in connection with or as a result of this Assignment or the exercise of any rights or remedies under this Assignment or under any of the Leases or by reason of any alleged obligations or undertakings of Agent, Lenders or holders of the Hedge Obligations to perform or discharge any of the terms, covenants or agreements contained in any of the Leases; provided, however, that nothing herein shall be construed to obligate Assignor to indemnify and hold Agent, the Lenders or the holders of the Hedge Obligations harmless for, from and against any and all costs, expenses, claims, demands, liability, loss or damage asserted against, imposed on or incurred by Agent, the Lenders or the holders of the Hedge Obligations by reason of such Person’s willful misconduct or gross negligence if a judgment is entered against Agent, a Lender or a holder of a Hedge Obligation by a court of competent jurisdiction after the expiration of all applicable appeal periods. Should Agent, a Lender or a holder of a Hedge Obligation incur any such costs, expenses, liabilities, loss or damage, or in the defense of any such claims or demands, for which it is to be indemnified by Assignor as aforesaid, the amount thereof shall be added to the Secured Obligations, shall bear interest at the Default Rate from the date incurred until paid (but in no event shall the interest payable exceed the maximum amount allowed by law), shall be secured by this Assignment, the Instrument and the other Loan Documents, and shall be payable immediately upon demand.

16. Notices . Except for any statutory notice required prior to exercise of the remedies provided herein, which must be delivered in accordance with such statutes, all notices, requests and other communications hereunder shall be made and delivered in the manner provided in the Instrument.

17. Rejection of Leases . In the event a tenant under any Lease should be the subject of any proceeding under the Federal Bankruptcy Act (Title 11 U.S.C.) or any other federal, state, or local statute which provides for the possible termination or rejection of the Leases assigned hereby, the Assignor covenants and agrees that if any of the Leases is so rejected, no settlement for damages shall be made without prior written consent of the Agent, and any check in payment of damages for rejection of any Lease will be made payable both to the Assignor and Agent. The Assignor hereby assigns any such payment to the Agent and further covenants and agrees that upon the request of the Agent, it will duly endorse to the order of the Agent any check, the proceeds of which will be applied to whatever portion of the indebtedness secured hereby and by the Security Documents which the Agent may elect.

 

12

18. No Merger of Estates . So long as any of the indebtedness secured hereby and by the Loan Documents shall remain unpaid and the obligation of the Lenders to make additional Loans or issue Letters of Credit shall continue, unless the Agent shall otherwise consent in writing, the fee title and the leasehold estate on the Property as hereinbefore described shall not merge, but shall always be kept separate and distinct, notwithstanding the union of said estate either in the Assignor or in any tenant or in a third party by purchase or otherwise.

19. Agent’s Rights of Assignment; Rights of Assignees . Agent may assign to any subsequent holder of the Note or the Instrument, or to any person acquiring title to the Property, all of Agent’s right, title and interest in any of the Leases and rents, issues, income and profits from the Property. No such assignee shall have any liability for any obligation which accrued under any of the Leases prior to the assignment to such assignee nor shall any such assignee have any obligation to account to Assignor for any rental payments which accrued prior to such assignment unless actually received by such assignee. After Assignor’s right, title and interest in the Property has been foreclosed or otherwise terminated, no assignee of Assignor’s interest in the Leases shall be liable to account to Assignor for any rents, issues, income or profits thereafter accruing.

20. Modifications, Etc. Assignor hereby consents and agrees that Agent or any other Person may at any time and from time to time, without notice to or further consent from Assignor, either with or without consideration, surrender any property or other security of any kind or nature whatsoever held by it or by any person, firm or corporation on its behalf or for its account, securing the Secured Obligations; substitute for any collateral so held by it, other collateral of like kind; agree to modification of the terms of the Credit Agreement, any of the other Loan Documents or agreements evidencing or relating to the Hedge Obligations (the “ Hedge Documents ”); extend or renew the Note, the Credit Agreement, any of the other Loan Documents or Hedge Documents for any period; grant releases, compromises and indulgences with respect to the Notes, the Credit Agreement, or any of the other Loan Documents or Hedge Documents for any period; grant releases, compromises and indulgences with respect to the Note, the Credit Agreement, or any of the other Loan Documents or Hedge Documents to any persons or entities now or hereafter liable thereunder or hereunder; release any co-borrower, guarantor or endorser of the Note, the Security Instrument, the Credit Agreement, any other Loan Documents or Hedge Documents; or take or fail to take any action of any type whatsoever; and no such action which Agent or any other Person shall take or fail to take in connection with the Loan Documents or Hedge Documents, or any of them, or any security for the payment of the Secured Obligations or for the performance of any obligations or undertakings of Assignor, nor any course of dealing with Assignor or any other person, shall release Assignor’s obligations hereunder, affect this Assignment in any way or afford Assignor any recourse against Agent or any other Person. The provisions of this Assignment shall extend and be applicable to all renewals, amendments, extensions, consolidations and modifications of the Loan Documents or Hedge Documents and the Leases, and any and all references herein to the Loan Documents or Hedge Documents or the Leases shall be deemed to include any such renewals, amendments, extensions, consolidations or modifications thereof.

 

13

THIS ASSIGNMENT shall inure to the benefit of Agent and any subsequent beneficiary of the Instrument and shall be binding upon Assignor, and Assignor’s heirs, executors, administrators, successors and assigns and any subsequent owner of the Property.

[Signatures Begin on the Following Page]

 

14

Assignor has executed this instrument as of the day and year first above written.

 

COMMONWEALTH OF VIRGINIA

COUNTY OF FAIRFAX

The foregoing instrument was acknowledged before me this             day of             , 2007 by                                         as Manager of Safari Ventures LLC, a Delaware limited liability company, on behalf of Rhino Equity LLC, a Delaware limited liability company.

My commission expires:

[Notarial Seal]

 

 

D-1

Assignor has executed this instrument as of the day and year first above written.

 

COMMONWEALTH OF VIRGINIA

COUNTY OF FAIRFAX

The foregoing instrument was acknowledged before me this             day of             , 2007 by                                         as Manager of Safari Ventures LLC, a Delaware limited liability company, on behalf of Quill Equity LLC, a Delaware limited liability company.

My commission expires:

[Notarial Seal]

 

 

2

Assignor has executed this instrument as of the day and year first above written.

 

COMMONWEALTH OF VIRGINIA

COUNTY OF FAIRFAX

The foregoing instrument was acknowledged before me this              day of             , 2007 by              as Manager of Safari Ventures LLC, a Delaware limited liability company, on behalf of Lemur Properties LLC, a Delaware limited liability company.

My commission expires:

[Notarial Seal]

 

 

3

Assignor has executed this instrument as of the day and year first above written.

 

COMMONWEALTH OF VIRGINIA

COUNTY OF FAIRFAX

The foregoing instrument was acknowledged before me this              day of             , 2007 by              as Manager of Safari Ventures LLC, a Delaware limited liability company, on behalf of Porpoise Ventures LLC, a Delaware limited liability company.

My commission expires:

[Notarial Seal]

 

 

4

EXHIBIT E

FORM OF JOINDER AGREEMENT

THIS JOINDER AGREEMENT (“Joinder Agreement”) is executed as of             , 20    , by             , a              (“Joining Party”), and delivered to KeyBank National Association, as Agent, pursuant to §5.5 of the Credit Agreement dated as of August 7, 2007, as from time to time in effect (the “Credit Agreement”), among Safari Ventures LLC (the “Parent Borrower”), the Subsidiary Borrowers, KeyBank National Association, for itself and as Agent, and the other Lenders from time to time party thereto. Terms used but not defined in this Joinder Agreement shall have the meanings defined for those terms in the Credit Agreement.

RECITALS

A. Joining Party is required, pursuant to §5.5 of the Credit Agreement, to become an additional Subsidiary Borrower under the Credit Agreement, the Notes, the Indemnity Agreement and the Contribution Agreement.

B. Joining Party expects to realize direct and indirect benefits as a result of the availability to Borrowers of the credit facilities under the Credit Agreement.

NOW, THEREFORE, Joining Party agrees as follows:

AGREEMENT

21. Joinder . By this Joinder Agreement, Joining Party hereby becomes a “Subsidiary Borrower”, a “Borrower” and a “Maker” under the Credit Agreement, the Notes, the Indemnity Agreement, and the other Loan Documents with respect to all the Obligations of Borrowers now or hereafter incurred under the Credit Agreement and the other Loan Documents, and a “Subsidiary Borrower” under the Contribution Agreement. Joining Party agrees that Joining Party is and shall be bound by, and hereby assumes, all representations, warranties, covenants, terms, conditions, duties and waivers applicable to a Subsidiary Borrower, a Borrower and a “Maker” under the Credit Agreement, the Notes, the Indemnity Agreement, the other Loan Documents and the Contribution Agreement.

22. Representations and Warranties of Joining Party . Joining Party represents and warrants to Agent that, as of the Effective Date (as defined below), except as disclosed in writing by Joining Party to Agent on or prior to the date hereof and approved by the Agent in writing (which disclosures shall be deemed to amend the Schedules and other disclosures delivered as contemplated in the Credit Agreement), the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects as applied to Joining Party as a Subsidiary Borrower and a Borrower on and as of the Effective Date as though made on that date. As of the Effective Date, all covenants and agreements in the Loan Documents and the Contribution Agreement of the Subsidiary Borrowers are true and correct with respect to Joining Party and no Default or Event of Default shall exist or might exist upon the Effective Date in the event that Joining Party becomes a Subsidiary Borrower.

 

E-1

23. Joint and Several . Joining Party hereby agrees that, as of the Effective Date, the Credit Agreement, the Notes, the Contribution Agreement, the Indemnity Agreement and the other Loan Documents heretofore delivered to the Agent and the Lenders shall be a joint and several obligation of Joining Party to the same extent as if executed and delivered by Joining Party, and upon request by Agent, will promptly become a party to the Credit Agreement, the Notes, the Contribution Agreement, the Indemnity Agreement and the other Loan Documents to confirm such obligation.

24. Further Assurances . Joining Party agrees to execute and deliver such other instruments and documents and take such other action, as the Agent may reasonably request, in connection with the transactions contemplated by this Joinder Agreement.

25. GOVERNING LAW . THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

26. Counterparts . This Agreement may be executed in any number of counterparts which shall together constitute but one and the same agreement.

27. The effective date (the “Effective Date”) of this Joinder Agreement is             , 20    .

IN WITNESS WHEREOF, Joining Party has executed this Joinder Agreement under seal as of the day and year first above written.

 

 

 

ACKNOWLEDGED:
KEYBANK NATIONAL ASSOCIATION, as Agent
By:
Its:
		[Printed Name and Title]

 

E-2

EXHIBIT F

FORM OF MORTGAGE

PREPARED BY AND

AFTER RECORDING RETURN TO:

William F. Timmons, Esq.

McKenna Long & Aldridge LLP

303 Peachtree Street, N.E., Suite 5300

Atlanta, Georgia 30308

THIS IS A CREDIT LINE DEED OF TRUST. For purposes of Va. Code Ann. Section 55-58.2, (i) the name of the noteholder secured is KeyBank National Association, as Agent, and its address at which communications may be mailed or delivered to it pursuant to Subsection 55-58.2(4) is 127 Public Square, Cleveland, Ohio 44114-1306, Attention: Real Estate Capital Services, and (ii) the maximum amount of principal to be secured hereby at any one time shall not exceed $475,000,000.00.

PIN No:              (Tax Map No.             ) [For ACC2 and ACC3 only]

GPIN:              [For VA4 only]

Tax Map Nos.              [For VA3 only]

[PLEASE INSERT CAPTIONS/ADDITIONAL DESCRIPTION FOR QUILL AND RHINO]

[This Instrument is partially exempt from recording tax pursuant to Va. Code Ann. Subsection 58.1-803D. The purpose of this Instrument is to modify the terms of an existing debt with the same lender, which debt is secured by a deed of trust recorded in the Clerk’s Office of the Circuit Court of              County, Virginia, in Deed Book              at page              in the original principal amount of $            , on which tax imposed by Section 58.1-803 has been paid, Grantor certifies that the amount of the existing debt is $             Recording tax is due on the additional indebtedness of $             in the amount of $            .]

[WE ARE NOT USING THIS EXEMPTION.]

AMENDED AND RESTATE D

DEED OF TRUST AND SECURITY AGREEMENT

             ,

a Delaware limited liability company

GRANTOR

TO

COMMERCIAL TITLE GROUP, INC.,

a Virginia corporation

AS TRUSTEE

FOR THE BENEFIT OF

KEYBANK NATIONAL ASSOCIATION,

a national banking association, as Agent

AGENT

DATED: AS OF             ,     , 2007

County: [Loudoun (ACC2 &ACC3)][Fairfax (VA3)][Prince William (VA4)]

State: Virginia

THIS AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT (this “ Instrument ”) is made and entered into as of this              day of             , 2007, by and among             , a Delaware limited liability company, having a mailing address of 1212 New York Avenue, N.W., Suite 900, Washington, D.C. 20005 (“ Grantor ”), and Commercial Title Group, Inc., a Virginia corporation, as Trustee (“ Trustee ”), whose business address is 8605 Westwood Center Drive, Suite 200, Vienna, VA 22182, and KEYBANK NATIONAL ASSOCIATION, a national banking association (“ KeyBank ”), having a mailing address of 127 Public Square, Cleveland, Ohio 44114-1306, Attn: Real Estate Capital Services, as Agent for itself and each other Lender (collectively, the “ Lenders ”), as grantee which is or may hereafter become a party to that certain Credit Agreement, dated of even date herewith, by and among Safari Ventures LLC, a Delaware limited liability company (“ Parent Borrower ”), the Subsidiary Borrowers now or hereafter a party thereto (the “ Subsidiary Borrowers ”; Parent Borrower and the Subsidiary Borrowers are hereinafter referred to collectively as “ Borrowers ”), KeyBank, as Agent and the Lenders (as the same may be further varied, amended, restated, renewed, consolidated, extended or otherwise supplemented from time to time, the “ Credit Agreement ”) (KeyBank, in its capacity as Agent, is hereinafter referred to as “ Agent ”). Capitalized terms used herein that are not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

WHEREAS , pursuant to that certain Assignment and Acceptance Agreement (the “ Assignment of Loan Documents ”), dated of even date herewith and Certificate of Transfer dated of even date herewith and recorded immediately prior hereto in the Clerk’s Office of the Circuit Court of              County, Virginia, from              (“ Assigning Lender ”) to Agent, Agent is the lawful owner and holder of a certain [Promissory Note] dated as of             , made by              to the order of              in the original principal face amount of              AND             /100 DOLLARS ($            ) (the “ Assigned Note ”); and

WHEREAS, pursuant to the Assignment of Loan Documents, Agent is the beneficiary owner and holder of that certain [Deed of Trust] dated as of             , made by             in favor of             , as Trustee for the benefit of Assigning Lender, and recorded on             in Deed Book             , Page             , of the aforesaid records (the “ Assigned Deed of Trust ”); and

WHEREAS, the Assigned Note and certain other instruments have been further amended, restated and renewed pursuant to those certain Amended and Restated Revolving Credit Notes and Amended and Restated Term Loan Notes executed by Borrowers and delivered to the Lenders, dated of even date herewith, in the aggregate original principal face amount of FOUR HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($475,000,000.00) (the Assigned Note, as so amended, restated and renewed in the form of the Amended and Restated Revolving Credit Notes and the Amended and Restated Term Loan Notes are sometimes hereinafter referred to collectively as the “ Amended and Restated Notes ”); and

WHEREAS, it is a condition precedent to the Lenders’ obligations under the Credit Agreement that Grantor execute and deliver this Instrument to amend and restate the Assigned Deed of Trust in its entirety as hereinafter set forth and to substitute the Trustee named herein for the trustee named in the Assigned Deed of Trust, provided, however, that the parties do not intend to extinguish the lien created by the Assigned Deed of Trust;

 

EXHIBIT “A” - PAGE 1

NOW THEREFORE , in consideration of the foregoing premises, the Assigned Deed of Trust is hereby amended, restated and spread in its entirety, and this Instrument shall hereafter encumber the Property as hereinafter provided:

W I T N E S S E T H:

FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00) and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to secure the indebtedness and other obligations of Grantor and the other Borrowers hereinafter set forth, Grantor does hereby grant, bargain, sell, convey, assign, transfer and set over unto Trustee, for the ratable benefit of Agent, the Lenders and the holders of the Hedge Obligations, and their successors and assigns, all of the following described land and interests in land, estates, easements, rights, improvements, property, fixtures, equipment, furniture, furnishings, appliances, general intangibles, and appurtenances, whether now or hereafter existing (collectively, the “ Property ”):

All those tracts or parcels of land and easements more particularly described in Exhibit “A” attached hereto and by this reference made a part hereof (the “ Land ”).

All present and future buildings, structures, parking areas, annexations and improvements of every nature whatsoever now or hereafter situated on the Land (hereinafter referred to as the “ Improvements ”) and all materials intended for construction, reconstruction, alteration and repairs of the Improvements now or hereafter erected, all of which materials shall be deemed to be included within the Improvements immediately upon the delivery thereof to the Land, and all gas and electric fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators and motors, plumbing and heating fixtures, incinerating, sprinkling, and waste removal systems, carpeting and other floor coverings, fire extinguishers and any other safety equipment required by governmental regulation or law, washers, dryers, water heaters, mirrors, mantels, air conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus and appurtenances, storm windows and doors, window and door screens, awnings and storm sashes, which are or shall be owned by Grantor and attached to said Improvements and all other furnishings, furniture, glassware, tableware, uniforms, linen, drapes and curtains and related hardware and mounting devices, wall to wall carpeting, radios, lamps, telephone systems, televisions and television systems, computer systems, fixtures, machinery, equipment, apparatus, appliances, books and records, chattels, inventory, accounts, farm products, consumer goods, general intangibles and personal property of every kind and nature whatsoever now or hereafter owned by Grantor and located in, on or about, or used or intended to be used with or in connection with the use, operation or enjoyment of the Property, including all extensions, additions, improvements, betterments, after-acquired property, renewals, replacements and substitutions, or proceeds from a permitted sale of any of the foregoing, together with the benefit of any deposits or payments now or hereafter made by Grantor or on behalf of Grantor, all of which are hereby declared and shall be deemed to be fixtures and accessions to the Land and a part of the Property as between the parties hereto and all persons claiming by, through or under them, and which shall be deemed to be a portion of the security for the indebtedness herein described and to be secured by this Instrument.

All easements, access rights, rights-of-way, strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, irrigation systems (including, without limitation, underground wiring, pipes, pumps and sprinkler heads), minerals, flowers, plants, shrubs, crops, trees, timber, fences, signs, bridges, fountains, monuments and other emblements now or hereafter located on the Land or under or above the same or any part or parcel thereof, and all estates, rights, titles, interests, privileges, liberties, servitudes, licenses, tenements, hereditaments and appurtenances, reversion and reversions, remainder and remainders, whatsoever, in any way belonging, relating or appertaining to the Land or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Grantor.

All leases, tenancies, occupancies and licenses, whether oral or written (collectively, the “ Leases ”), and all income, rents, issues, profits and revenues of the Property from time to time accruing (including, without limitation, all payments under Leases, all guarantees of the foregoing or letters of credit relating to the foregoing, lease termination payments, proceeds of insurance, condemnation payments, tenant security, damage or other deposits whether held by Grantor or in a trust account, escrow funds, fees, charges, rents, license fees, accounts, royalties, security, damage or other deposits from time to time accruing, all payments under working interests, production payments, royalties, overriding royalties, operating interests, participating interest and other such entitlements, and all the estate, right, title, interest, property, possession, claim and demand whatsoever at law, as well as in equity, of Grantor of, in and to the same (collectively, the “ Revenues ”); reserving only the right to Grantor to collect the same (other than lease termination payments, or, except as provided in the Credit Agreement, insurance proceeds and condemnation payments) so long as no Event of Default has occurred and is continuing.

All insurance policies, building service, building maintenance, construction, development, management, indemnity, and other similar agreements and contracts and subcontracts, written or oral, express or implied, now or hereafter entered into, arising or in any manner related to the purchase, construction, design, improvement, use, operation, ownership, occupation, enjoyment, sale, conversion or other disposition (voluntary or involuntary) of the Property, or the buildings and improvements now or hereafter located thereon, or any other interest in the Property, or any combination thereof, property management agreements, cable television agreements, contracts for the purchase of supplies, telephone service agreements, yellow pages or other advertising agreements, sales contracts, construction contracts, architects agreements, general contract agreements, design agreements, engineering agreements, technical service agreements, sewer and water and other utility agreements, service contracts, agreements relating to the collection of receivables or use of customer lists, all purchase options, option agreements, rights of first refusal, contract deposits, earnest money deposits, prepaid items and payments due and to become due thereunder, and further including all payment and performance bonds, labor, deposits, assurances, construction guaranties, guaranties, warranties, indemnities and other undertakings, architectural plans and specifications, drawings, surveys, soil reports, engineering reports, inspection reports, environmental audits and other technical descriptions and reports relating to the Property, renderings and models, permits, consents, approvals, licenses, variances, agreements, contracts, building permits, purchase orders and equipment leases, personal property leases, and all causes of action relating thereto.

All deposit accounts, instruments, accounts receivable, documents, causes of action, claims, names by which the Property or the improvements thereon may be operated or known, all rights to carry on business under such names, all telephone numbers or listings, all rights, interest and privileges of which Grantor may have in any capacity under any covenants, restrictions or declarations now or hereafter relating to the Property or the Improvements, and all notes or chattel paper now or hereafter arising from or by virtue of any transactions relating to the Property or the Improvements located thereon and all customer lists, other lists, and business information relating in any way to the Property or the Improvements or the use thereof, whether now owned or hereafter acquired;

All assets related to the ownership or operation of the Property or the Improvements now or hereafter erected thereon, including, without limitation, accounts (including, without limitation, health-care-insurance receivables), chattel paper (whether tangible or electronic), deposit accounts, documents, general intangibles (including, without limitation, payment intangibles, and all current and after acquired registered copyrights, copyright rights, advertising materials, web sites, and web pages, software and software licenses, registered trademarks and service marks, trademark rights, trademark applications, service mark rights, service mark applications, trade dress rights, company names, and all domain names, owned or used in connection with the Grantor’s business, and in each case all goodwill associated therewith), goods (including, without limitation, inventory, property, possession, equipment, fixtures and accessions), instruments (including, without limitation, promissory notes), investment property, letter-of-credit rights, letters of credit, money, supporting obligations, as-extracted collateral, timber to be cut and all proceeds and products of anything described or referred to above in this Subsection (g), in each case as such terms are defined under the Uniform Commercial Code as in effect in the applicable jurisdiction.

All cash funds, deposit accounts and other rights and evidence of rights to cash, now or hereafter created or held by Trustee or Agent pursuant to this Instrument, the Credit Agreement or any other of the Loan Documents.

All proceeds, products, substitutions and accessions of the foregoing of every type.

TO HAVE AND TO HOLD the Property and all parts, rights, members and appurtenances thereof, to the use, benefit and behoof of Trustee for the ratable benefit of Agent, the Lenders and the holders of the Hedge Obligations and their respective successors and assigns, IN FEE SIMPLE forever; and Grantor covenants that Grantor is lawfully seized and possessed of the Property as aforesaid, and has good right to convey the same, that the same is unencumbered except for those matters expressly set forth in Exhibit “B” attached hereto and by this reference made a part hereof (the “ Permitted Encumbrances ”), and that Grantor does warrant and will forever defend the title thereto against the claims of all persons whomsoever, except as to those matters set forth in said Exhibit “B” attached hereto.

IN TRUST NEVERTHELESS to secure the following described obligations (collectively, the “ Secured Obligations ”):

The debt evidenced by (i) those certain Amended and Restated Revolving Credit Notes made by Borrowers to the order of one or more of the Lenders in the aggregate principal amount of Two Hundred Seventy-Five Million and No/100 Dollars ($275,000,000.00) and that certain Swing Loan Note made by Borrowers to the order of KeyBank in the principal face amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00), each of which is due and payable in full on or before             , 2010, unless extended as provided in the Credit Agreement, and those certain Amended and Restated Term Loan Notes made by Borrowers to the order of one or more of the Lenders in the principal face amount of Two Hundred Million and No/100 Dollars ($200,000,000.00), each of which is due and payable in full on or before             , 2011, each of which has been issued pursuant to the Credit Agreement; and (ii) each other note as may be issued under the Credit Agreement, each as originally executed, or if varied, extended, supplemented, consolidated, amended, replaced, renewed, modified or restated from time to time as so varied, extended, supplemented, consolidated, amended, replaced, renewed, modified or restated (collectively, the “ Note ”); provided, however, in no event shall the maximum aggregate principal amount of indebtedness under the Note exceed Four Hundred Seventy-Five Million and No/100 Dollars ($475,000,000.00).

The payment, performance and discharge of each and every obligation, covenant and agreement of Grantor contained herein, of Grantor and the other Borrowers contained in the Credit Agreement, and of Grantor and the other Borrowers in the other Loan Documents, including, without limitation, the obligation of Borrowers to reimburse Issuing Lender for any draws under the Letters of Credit, and in the other Loan Documents.

Any and all additional advances made by Agent or any Lender to protect or preserve the Property or the lien and security title hereof in and to the Property, or for taxes, assessments or insurance premiums as hereinafter provided (whether or not Grantor is the owner of the Property at the time of such advances).

The payment, performance and discharge of each and all of the Hedge Obligations (as defined in the Credit Agreement).

Any and all other indebtedness now or hereafter owing by Borrowers to Agent or any Lender pursuant to the terms of the Credit Agreement, whether now existing or hereafter arising or incurred, however evidenced or incurred, whether express or implied, direct or indirect, absolute or contingent, due or to become due, including, without limitation, all principal, interest, fees, expenses, prepayment premiums or fees, yield maintenance amounts and indemnification amounts, and all renewals, modifications, consolidations, replacements and extensions thereof.

All costs and expenses incurred by the Trustee, Agent, the Lenders and the holders of the Hedge Obligations, in connection with the enforcement and collection of the Secured Obligations, including, without limitation, all attorneys’ fees and disbursements, and all other such costs and expenses described in and incurred pursuant to the Note, the Credit Agreement, this Instrument, the other Loan Documents and the agreements evidencing or relating to the Hedge Obligations (the “ Hedge Documents ”) (collectively, the “ Enforcement Costs ”).

Subject to Section 2.22 hereof, should the Secured Obligations secured by this Instrument be paid and performed according to the tenor and effect thereof when the same shall become due

and payable and the obligation of the Lenders to make Loans or issue Letters of Credit under the Credit Agreement shall have terminated, and should Grantor perform all covenants herein contained in a timely manner, then this Instrument shall be released.

Grantor hereby further covenants and agrees with Trustee and Agent as follows:

ARTICLE 1

1.01 Payment of Secured Obligations . Grantor will pay and perform or caused to be paid and performed the Secured Obligations according to the tenor thereof and all other sums now or hereafter secured hereby as the same shall become due.

1.02 Funds for Impositions . After the occurrence and during the continuance of an Event of Default, Grantor shall pay to Agent, subject to Agent’s option under Section 1.03 hereof, on the days that mo