AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

EXHIBIT 10.1

AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT

among

BRANDYWINE REALTY TRUST
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
as Borrowers

and

THE LENDERS IDENTIFIED HEREIN

and

JPMORGAN CHASE BANK, N.A.
as Administrative Agent, Swing Lender and Issuing Lender

and

BANK OF AMERICA, N.A.
as Syndication Agent and Issuing Lender

and

CITIZENS BANK OF PENNSYLVANIA,
WACHOVIA BANK, NATIONAL ASSOCIATION, and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents

DATED AS OF DECEMBER 22, 2005

J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

i

TABLE OF CONTENTS

(continued)

ii

TABLE OF CONTENTS

(continued)

iii

TABLE OF CONTENTS

(continued)

iv

SCHEDULES

Schedule EG

Eligible Ground Leases

 

Schedule 2.3(c)

Existing Letters of Credit

 

Schedule 6.15

Organization Structure/Subsidiaries

 

Schedule 6.21

Properties

 

Schedule 6.25

Eligible Unencumbered Property Subsidiaries

 

Schedule 8.2

Existing Liens

 

Schedule 8.6

Excluded Investments

 

Schedule 11.1

Notices

EXHIBITS

Exhibit 1.1(a)

Revolving Loan Commitment Percentages

 

Exhibit 2.1(c)

Form of Notice of Borrowing

 

Exhibit 2.1(f)

Form of Notice of Continuation/Conversion

 

Exhibit 2.1(h)

Form of Revolving Note

 

Exhibit 2.2(b)

Form of Competitive Bid Quote Request

 

Exhibit 2.2(c)

Form of Invitation for Competitive Bid Quotes

 

Exhibit 2.2(d)(ii)

Form of Competitive Bid Quote

 

Exhibit 7.1(c)

Form of Officer’s Certificate

 

Exhibit 7.12

Form of Guaranty

 

Exhibit 11.3(b)

Form of Assignment Agreement

 

Exhibit 11.3(e)-1

Form of Designation Agreement

 

Exhibit 11.3(e)-2

Form of Designated Bank Note

 

AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT

     THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “ Credit Agreement ”) is entered into as of December 22, 2005 among BRANDYWINE REALTY TRUST (“ BRT ”), a Maryland real estate investment trust, BRANDYWINE OPERATING PARTNERSHIP, L.P. (“ BOP ”), a Delaware limited partnership (collectively, the “ Borrowers ”), the Lenders (as defined herein), and JPMORGAN CHASE BANK, N.A., as Administrative Agent for the Lenders, Swing Lender and Issuing Lender.

RECITALS

      WHEREAS , the Borrowers, JPMorgan Chase Bank, N.A., as administrative agent, issuing lender and swing lender, and certain of the lenders are party to a Credit Agreement dated as of May 24, 2004, as amended by Amendment No. 1 dated as of September 10, 2004 (as so amended, the “ Existing Credit Agreement ”), and the parties desire to amend and restate such Existing Credit Agreement in its entirety as set forth herein;

      WHEREAS , the Borrowers desire that the Lenders provide (i) an amended and restated revolving credit facility in an initial aggregate amount of up to $600 million with the option to increase the aggregate amount to $800 million, (ii) swing loans and (iii) competitive bid borrowings;

      WHEREAS , the Lenders party hereto have agreed to make the requested revolving credit facility available to the Borrowers on the terms and conditions hereinafter set forth;

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

SECTION 1.

DEFINITIONS AND ACCOUNTING TERMS

     1.1 Definitions.

     As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular:

     “ Acquisition ” means the acquisition by merger by BRT of Prentiss in accordance with the terms of the Acquisition Purchase Agreement.

 

 

     “ Acquisition Properties ” means the properties of Prentiss and its Subsidiaries acquired (or to be acquired) indirectly by the Borrowers in connection with the Acquisition.

     “ Acquisition Purchase Agreement ” means that certain Agreement and Plan of Merger, dated as of October 3, 2005, among the Borrowers, Prentiss and certain other parties.

     “ Adjusted Base Rate ” means the Base Rate plus 0.25% per annum.

     “ Adjusted Eurodollar Rate ” means the Eurodollar Rate plus the Applicable Percentage.

     “ Adjusted NOI ” means NOI less (a) an annual sum of $0.25 per square foot for all Properties and (b) all interest income of the Combined Parties for the applicable period.

     “ Administrative Agent ” means JPMorgan Chase Bank, N.A. or any successor administrative agent appointed pursuant to Section 10.9.

     “ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling (including but not limited to all directors and officers of such Person), controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation, partnership, limited liability company or real estate investment trust if such Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such corporation or real estate investment trust or to vote 10% or more of the partnership or membership interests of such partnership or limited liability company or (ii) to direct or cause direction of the management and policies of such corporation, trust, limited liability company or partnership, whether through the ownership of voting securities, as managing member or general partner, by contract or otherwise.

     “ Agency Services Address ” means 1111 Fannin, 10 ^th Floor, Houston, TX 77002 Attn: Loan and Agency, or such other address as may be identified by written notice from the Administrative Agent to the Borrowers.

-2-

     “ Agent-Related Persons ” means the Administrative Agent (including any successor administrative agent), together with its Affiliates (including, in the case of JPMorgan Chase Bank, N.A. in its capacity as Administrative Agent, J.P. Morgan Securities Inc.), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

     “ Annualized Modified Adjusted NOI ” means an amount equal to (a) Adjusted NOI for the prior fiscal quarter for all Properties owned during such entire fiscal quarter multiplied times four plus (b) Adjusted NOI for the number of days owned for all Properties acquired during such fiscal quarter multiplied by a fraction equal to 365 divided by the number of days such Property was owned by a Combined Party.

     “ Applicable Percentage ” means if either (i) BRT has at least two Unsecured Senior Debt Ratings in effect or (ii) BOP has at least two Unsecured Senior Debt Ratings in effect, the appropriate applicable percentages corresponding to the Pricing Level in the table below based upon the lowest Unsecured Senior Debt Ratings of (A) BRT, if BRT has at least two Unsecured Senior Debt Ratings in effect and BOP does not, (B) BOP, if BOP has at least two Unsecured Senior Debt Ratings in effect and BRT does not or (C) if both BRT and BOP have at least two Unsecured Senior Debt Ratings in effect, the Borrower with the lowest Unsecured Senior Debt Rating, in each case as of the most recent Calculation Date; provided that (x) if either or both of BOP or BRT has three Unsecured Senior Debt Ratings in effect, the appropriate applicable percentages shall correspond to the Pricing Level based on the lower Unsecured Senior Debt Rating of the two highest Unsecured Senior Debt Ratings of the applicable Borrower under clauses (A), (B) and (C) above and (y) if neither BOP nor BRT has at least two Unsecured Senior Debt Ratings in effect, the Applicable Percentage shall be based on Pricing Level IV below:

     The Applicable Percentage for Revolving Loans shall be determined and adjusted on the date (each a “ Calculation Date ”) on which BRT or BOP obtains an Unsecured Senior Debt Rating from at least two of S&P, Moody’s or Fitch or the date on which there is a change in any Unsecured Senior Debt Rating of BRT or BOP that would cause a change in the Applicable Percentage, in each case promptly after the Administrative Agent receives notice regarding such Unsecured Senior Debt Rating. Each Applicable Percentage shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Applicable Percentage shall be applicable both to new Revolving Loans made and to all existing Revolving Loans.

-3-

     The Borrowers shall promptly deliver to the Administrative Agent, at the address set forth on Schedule 11.1 and at the Agency Services Address, information regarding any change in the Unsecured Senior Debt Rating that would change the existing Pricing Level for the Applicable Percentage as set forth above.

     “ Arrangers ” means J.P. Morgan Securities Inc. and Banc of America Securities LLC, collectively, in their capacity as joint lead arrangers and joint bookrunners.

     “ 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, the rate per annum equal to the greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.

     “ Base Rate Loan ” means a Loan bearing interest based on a rate determined by reference to the Base Rate.

     “ BOP ” means Brandywine Operating Partnership, L.P., a Delaware limited partnership, together with any successors and permitted assigns.

     “ Borrowers ” means BRT and BOP and “ Borrower ” means either one of them.

     “ BRT ” means Brandywine Realty Trust, a Maryland real estate investment trust, together with any successors and permitted assigns.

     “ Business Day ” means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or other governmental action to close in New York, New York; provided that in the case of Eurodollar Loans, such day is also a day on which dealings between banks are carried on in Dollar deposits in the London interbank market.

     “ Calculation Date ” has the meaning set forth in the definition of Applicable Percentage in this Section 1.1.

     “ Capital Expenditures ” means all expenditures of the Borrowers and their Subsidiaries which, in accordance with GAAP, would be classified as capital expenditures, including, without limitation, Capital Leases.

     “ Capital Lease ” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on a balance sheet of that Person.

-4-

     “ Capital Percentage ” means, with respect to the interest of a Borrower or one of its Subsidiaries in another Person, the percentage interest of such Person based on the aggregate amount of net capital contributed by such Borrower or such Subsidiary in such Person at the time of determination relative to all capital contributions made in such Person at such time of determination.

      “Capitalization Rate” means 8.50%.

     “ Cash Equivalents ” means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time and demand deposits and certificates of deposit of (i) any Lender or any of its Affiliates, (ii) any domestic commercial bank 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 270 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 six months of the date of acquisition, (d) repurchase agreements with a bank or trust company (including any of the Lenders) or securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which a Borrower or one of its Subsidiaries shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and (e) 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 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 any of the following events:

(a) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) has become, directly or indirectly, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all shares that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time or the occurrence of any contingency), by way of merger, consolidation or otherwise, of 20% or more of the voting power of BRT on a fully-diluted basis, after giving effect to the conversion and exercise of all outstanding warrants, options and other securities of BRT convertible into or exercisable for voting power of BRT (whether or not such securities are then currently convertible or exercisable); or

-5-

(b) during any period of up to twelve (12) consecutive months commencing on or after the Closing Date, individuals who were trustees of BRT at the beginning of such period (the “ Continuing Trustees ”), plus any new trustees whose election or appointment was approved by a majority of the Continuing Trustees then in office, shall cease for any reason to constitute a majority of the Board of Trustees of BRT; or

 

	(c) BRT fails to directly own at least 75% of the aggregate ownership interests in BOP (giving effect to any convertible interests with respect thereto).

     “ Closing Date ” means the date hereof.

     “ Code ” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed also to refer to any successor sections.

     “ Combined Parties ” means the Borrowers and their Subsidiaries and all joint ventures or partnerships to which a Borrower or one of its Subsidiaries is a party.

     “ Commitment ” or “ Commitments ” means (a) with respect to each Lender, the Revolving Loan Commitment Percentage of such Lender multiplied by the Revolving Committed Amount and (b) with respect to the Issuing Lenders, the LOC Commitment, individually or collectively, as applicable.

     “ Committed Loans ” means Revolving Loans and Swing Loans.

     “ Competitive Bid Lender ” means, as to each Competitive Bid Loan, the Lender funding such Competitive Bid Loan.

     “ Competitive Bid Loan ” means a loan made or to be made by a Lender pursuant to a LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant to Section 3.10).

     “ Competitive Bid Margin ” has the meaning set forth in Section 2.2(d)(i)(C).

     “ Competitive Bid Quote ” means an offer by a Lender to make a Competitive Bid Loan in accordance with Section 2.2(d).

     “ Competitive Bid Quote Request ” has the meaning set forth in Section 2.2(a).

-6-

     “ Construction-in-Process ” means a Property on which construction of improvements (excluding tenant improvements and excluding work prior to erection of the structure of the building) has commenced and is proceeding to completion in the ordinary course but has not yet been completed (as such completion shall be evidenced by a temporary or permanent certificate of occupancy permitting use of such Property by the general public). Any such Property shall be treated as Construction-in-Process until the earlier of (i) 12 months from the date of completion (as evidenced by a certificate of occupancy permitting use of such Property by the general public) or (ii) such Property achieves an 85% occupancy rate (determined on the basis of tenants paying rent).

     “ Continuing Trustees ” has the meaning set forth in the definition of Change of Control.

     “ Credit Documents ” means this Credit Agreement, the Notes, each Guaranty (if any), any Notice of Borrowing, any Competitive Bid Quote Request, any Notice of Continuation/Conversion and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto.

     “ Credit Exposure ” has the meaning set forth in the definition of Required Lenders in this Section 1.1.

     “ Credit Parties ” means the Borrowers and any Guarantors and “ Credit Party ” means any one of them.

     “ Debt Payments ” means, for any period, for the Combined Parties, the sum of (a) Interest Expense for such period plus (b) all payments of principal and any required prepayments on Funded Debt of the Combined Parties (other than balloon payments) for such period, ending on the date of determination (including the principal component of payments due on Capital Leases during the applicable period ending on the date of determination).

     “ Default ” means any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

     “ Defaulting Lender ” means, at any time, any Lender that (a) has failed to make a Loan or purchase a Participation Interest required pursuant to the terms of this Credit Agreement (but only for so long as such Loan is not made or such Participation Interest is not purchased), (b) has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this Credit Agreement (but only for so long as such amount has not been repaid) or (c) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or similar official.

-7-

     “ Designated Bank ” means a special purpose corporation that (i) shall have become a party to this Credit Agreement pursuant to Section 11.3(e) and (ii) is not otherwise a Lender.

     “ Designated Bank Notes ” means promissory notes of the Borrowers, substantially in the form of Exhibit 11.3(e)-2 hereto, evidencing the obligation of the Borrowers to repay Competitive Bid Loans made by Designated Banks, as the same may be amended, supplemented, modified or restated from time to time, and “Designated Bank Note” means any one of such promissory notes issued under Section 11.3(e) hereof.

     “ Designating Lender ” shall have the meaning set forth in Section 11.3(e) hereof.

     “ Designation Agreement ” means a designation agreement in substantially the form of Exhibit 11.3(e)-1 attached hereto, entered into by a Lender and a Designated Bank and accepted by the Administrative Agent.

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

     “ Effective Date ” means the date, as specified by the Administrative Agent, on which the conditions set forth in Section 5.1 shall have been fulfilled (or waived in the sole discretion of the Lenders) and on which the initial Loans shall have been made and/or the initial Letters of Credit shall have been issued.

     “ Eligible Assignee ” means (a) any Lender or any Affiliate of a Lender; (b) a commercial bank having total assets in excess of $5,000,000,000; (c) the central bank of any country which is a member of the Organization for Economic Cooperation and Development; or (d) a finance company or other financial institution reasonably acceptable to the Administrative Agent, which is regularly engaged in making, purchasing or investing in loans and having total assets in excess of $500,000,000 or is otherwise acceptable to the Administrative Agent. Neither a Borrower nor any Affiliate of the Borrowers shall qualify as an Eligible Assignee.

      “ Eligible Ground Lease ” means a ground lease that (a) has a minimum remaining term of twenty-five (25) years, including tenant controlled options, as of any date of determination, (b) has customary notice rights, default cure rights, bankruptcy new lease rights and other customary provisions for the benefit of a leasehold mortgagee or has equivalent protection for a leasehold permanent mortgagee by a subordination to such leasehold permanent mortgagee of the landlord’s fee interest, and (c) is otherwise acceptable for non-recourse leasehold mortgage financing under customary prudent lending requirements. The Eligible Ground Leases as of the date of this Credit Agreement are listed on Schedule EG .

     “ Eligible Land ” means undeveloped land which is zoned for office or industrial use and which is not subject to a building moratorium or other restriction on construction.

-8-

     “ Eligible Subsidiary ” means any Subsidiary of the Borrowers which has no Recourse Indebtedness and has not provided a guaranty of any other Funded Debt of the Borrowers.

     “ Eligible Unencumbered Property Subsidiary ” means an Eligible Subsidiary that owns or ground-leases any Property that is treated as Unencumbered Property, Unencumbered Construction-in-Process or Unencumbered Eligible Land under this Agreement.

     “ Environmental Claim ” means any investigation, written notice, violation, written demand, written allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or written claim whether administrative, judicial or private in nature arising (a) pursuant to, or in connection with, an actual or alleged violation of any Environmental Law, (b) in connection with any Hazardous Material, (c) from any assessment, abatement, removal, remedial, corrective, or other response action in connection with an Environmental Law or other order of a Governmental Authority or (d) from any actual or alleged damage, injury, threat, or harm to health, safety, natural resources, or the environment.

-9-

Back to Contents

     “ Environmental Laws ” means any current or future legal requirement of any Governmental Authority pertaining to (a) the protection of health, safety, and the indoor or outdoor environment, (b) the conservation, management, or use of natural resources and wildlife, (c) the protection or use of surface water and groundwater or (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material or (e) pollution (including any release to land surface water and groundwater) and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C. 2601 et seq., Hazardous Materials Transportation Act, 49 U.S.C. App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et seq., Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300(f) et seq., any analogous implementing or successor law, and any amendment, rule, regulation, order, or directive issued thereunder.

     “ Equity Issuance ” means any issuance by a Borrower or one of its Subsidiaries to any Person (other than another Borrower or Subsidiary) of shares of its capital stock, preferred stock, common or preferred shares of beneficial interest, partnership or membership interests or other equity interests, including pursuant to the exercise of options or warrants or pursuant to the conversion of any debt securities to equity; provided that the definition of Equity Issuance as used herein shall not include (a) issuances of equity to employees or trustees of a Borrower or one of its Subsidiaries to the extent such issuances do not exceed $2,000,000 in any one instance or $10,000,000, in the aggregate, during the term of this Credit Agreement, (b) issuances of common stock or common or preferred shares of beneficial interests the proceeds of which are used for the sole purpose of conversion or redemption of convertible preferred stock or perpetual preferred stock or preferred shares of beneficial interests or (c) the issuance of equity interests in Brandywine Cognac I LLC to Prudential (or its assignee) as contemplated by the Master Agreement and the Acquisition Purchase Agreement.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

     “ ERISA Affiliate ” means an entity, whether or not incorporated, which is under common control with a Borrower or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes a Borrower or any Subsidiary of a Borrower and which is treated as a single employer under subsections (b) or (c) of Section 414 of the Code.

     “ ERISA Event ” means (i) with respect to any Plan, the occurrence of a Reportable Event or the substantial cessation of operations (within the meaning of Section 4062(e) of ERISA); (ii) the withdrawal of a Borrower, any Subsidiary of a Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (iii) the distribution of a notice of intent to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to terminate or the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (vi) the complete or partial withdrawal of a Borrower, any Subsidiary of a Borrower or any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for imposition of a lien under Section 302(f) of ERISA exist with respect to any Plan; or (viii) the adoption of an amendment to any Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA.

     “ Eurodollar Loan ” means a Revolving Loan bearing interest based on a rate determined by reference to the Adjusted Eurodollar Rate.

-10-

     “ Eurodollar Rate ” means, for the Interest Period for each Eurodollar Loan or Competitive Bid Loan comprising part of the same borrowing (including conversions, extensions and renewals), a per annum interest rate as determined on the basis of the offered rates for deposits in Dollars, for the period of time comparable to such Interest Period that appears on Telerate page 3750 as of 11:00 a.m. London time on the day that is two (2) Business Days preceding the first day of such Interest Period; provided , however , if the rate described above does not appear on Telerate page 3750 on any applicable interest determination date, the Eurodollar Rate shall be the rate (rounded upwards to the nearest one-hundred thousandth of one percent, if necessary) for deposits in Dollars for a period substantially equal to the Interest Period on the Reuters Page “LIBO” (or such other page as may replace the LIBO Page on that service for the purpose of displaying such rates), as of 11:00 a.m. (London Time), on the day that is two (2) Business Days prior to the beginning of such Interest Period. If both the Dow Jones Market Service and Reuters systems are unavailable, then the rate for that date will be determined on the basis of the offered rates for deposits in Dollars in an amount comparable to the principal amount of such Loan and for a period of time comparable to such Interest Period which are offered by four major banks in the London interbank market at approximately 11:00 a.m. London time, on the day that is two (2) Business Days preceding the first day of such Interest Period as selected by Administrative Agent. The principal London office of each of the four major London banks will be requested to provide a quotation of its Dollar deposit offered rate. If at least two such quotations are provided, the rate for that date will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the rate for that date will be determined on the basis of the rates quoted for loans in Dollars to leading European banks in an amount comparable to the principal amount of such Loan and for a period of time comparable to such Interest Period offered by major banks in New York City at approximately 11:00 a.m. (New York City time), on the day that is two (2) Business Days preceding the first day of such Interest Period. In the event that Administrative Agent is unable to obtain any such quotation as provided above, it will be deemed that the Eurodollar Rate for a Eurodollar Loan or a Competitive Bid Loan cannot be determined and the provisions of Section 3.10 shall apply. In the event that the Board of Governors of the Federal Reserve System shall impose a Eurodollar Reserve Percentage with respect to Eurodollar deposits of the Person serving as the Administrative Agent, then for any period during which such Eurodollar Reserve Percentage shall apply, the Eurodollar Rate shall be equal to the amount determined above divided by an amount equal to 1 minus the Eurodollar Reserve Percentage.

     “ Eurodollar Reserve Percentage ” means, for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurodollar liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans is determined) with respect to member banks of the Federal Reserve System, whether or not any Lender has any Eurodollar liabilities subject to such reserve requirement at that time. Eurodollar Loans shall be deemed to constitute Eurodollar liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Lender. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

     “ Event of Default ” means any of the events or circumstances described in Section 9.1.

     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, modified, succeeded or replaced from time to time, and the rules and regulations promulgated thereunder.

     “ Existing Credit Agreement ” has the meaning set forth in the recitals.

     “ Existing Letters of Credit ” means the letters of credit described on Schedule 2.3(c) .

     “ Extension of Credit ” means, as to any Lender, the making of a Loan by such Lender (or a participation therein by a Lender) or the issuance of, or participation in, a Letter of Credit by such Lender.

     “ Facility Fees ” means the fees payable to the Lenders pursuant to Section 3.4(a).

-11-

     “ Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, at the discretion of the Administrative Agent, to the nearest 1/100th 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 and (b) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

     “ Fee Letter ” means that certain letter agreement, dated as of December 16, 2005 between the Administrative Agent and BRT, as amended, modified, supplemented or replaced from time to time.

     “ Fitch ” means Fitch Inc. or any successor or assignee of the business of such company in the business of rating securities.

     “ Fixed Charge Coverage Ratio ” means, for any period, the ratio of (a) Adjusted NOI for such period to (b) the sum of Debt Payments for such period plus all dividends on preferred shares of beneficial interest of BRT or preferred operating partnership units of BOP (not owned by BRT) for such period plus any letter of credit fees for such period.

     “ Funded Debt ” means, without duplication, the sum of (a) all Indebtedness of the Combined Parties for borrowed money, (b) all purchase money Indebtedness of the Combined Parties, (c) the principal portion of all obligations of the Combined Parties under Capital Leases, (d) all obligations, contingent or otherwise, relative to the face amount of all letters of credit (other than letters of credit supporting trade payables in the ordinary course of business), whether or not drawn, and banker’s acceptances issued for the account or upon the application of a Combined Party (it being understood that, to the extent an undrawn letter of credit supports another obligation constituting Indebtedness, in calculating aggregated Funded Debt only such other obligation shall be included), (e) all Guaranty Obligations of the Combined Parties with respect to the indebtedness of another Person of the types described in this definition, (f) all indebtedness of another Person of the types described in this definition that is secured by a Lien on any property of the Combined Parties whether or not such indebtedness has been assumed by a Combined Party, (g) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of a Combined Party where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP, (h) all obligations of the Combined Parties in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or exchange rate or commodity price hedging agreements and (i) all take out loan commitments to the extent such take out commitment is not supported by a financial commitment from a third party containing standard terms and conditions; provided that Funded Debt shall not include intercompany items or trade payables incurred in the ordinary course of business; and provided further that, for purposes of calculating the Leverage Ratio, the Secured Debt Ratio, the Unsecured Debt limitation and the Unencumbered Cash Flow Ratio, to the extent Funded Debt includes Indebtedness in respect of Construction-in-Process, the amount of such Funded Debt shall be deemed to be the total construction costs incurred for the Construction-in-Process as of such date. The calculation of Funded Debt of the Combined Parties shall be subject to Section 1.4.

     “ Funds From Operations ”, when used with respect to any Person, shall have the meaning given to such term in, and shall be calculated in accordance with, standards promulgated by the National Association of Real Estate Investment Trusts in effect from time to time.

     “ GAAP ” means generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3.

     “ Governmental Authority ” means any Federal, state, local or provincial court or governmental agency, authority, instrumentality or regulatory body.

     “ Guarantors ” means any Persons who may from time to time execute a Guaranty, as required by Section 7.12 or otherwise, together with their successors and assigns; in each case unless released as a Guarantor pursuant to Section 8.5(b) or Section 11.19.

     “ Guaranty ” means the guaranty of payment provided by a Subsidiary of a Borrower in favor of the Administrative Agent and the Lenders in the form of Exhibit 7.12.

-12-

     “ Guaranty Obligations ” means, with respect to any Person, without duplication, any obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or other obligation or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made. It is understood and agreed that for purposes of any “completion guaranty” provided by a Borrower or one of its Subsidiaries, the amount of Indebtedness associated with such completion guaranty shall be none unless such completion guaranty is enforced (or written notice of the intent to enforce such completion guaranty has been received) at which time the Indebtedness associated with such completion guaranty shall equal the remaining cost to complete the project plus ten percent until such time as a certificate of occupancy is issued.

     “ Hazardous Materials ” means any substance, material or waste defined or regulated in or under any Environmental Laws.

     “ Incentive Stock Plan ” means the BRT Amended and Restated 1997 Long-Term Incentive Plan, as amended from time to time, and any other equity incentive plan hereafter established by BRT or one of its Subsidiaries pursuant to which awards of equity interests in BRT or such Subsidiary may be made to employees of BRT or one of its Subsidiaries.

     “ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person which would appear as liabilities on a balance sheet of such Person, (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all Guaranty Obligations of such Person, (g) the principal portion of all obligations of such Person under (i) Capital Leases and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product 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, (h) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements, or other interest or exchange rate or commodity price hedging agreements, (i) the maximum amount of all performance and standby letters of credit issued or bankers’ acceptances facilities created for the account or upon the application of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (j) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date; provided that Indebtedness shall not include preferred stock which carries a defined term if its conversion or redemption occurs solely through the issuance of additional equity or from the proceeds of an equity offering, (k) all obligations evidenced by take out commitments, (l) the aggregate amount of uncollected accounts receivables of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with GAAP and (m) all obligations of such Person to repurchase any securities which repurchase obligation is related to the issuance thereof, including, without limitation, obligations commonly known as residual equity appreciation potential shares or forward equity purchase contracts; provided, however, that Indebtedness shall not include intercompany items or trade payables incurred in the ordinary course of business. Subject to Section 1.4, the Indebtedness of any Person shall include the Indebtedness of any partnership or unincorporated joint venture in which such Person is legally obligated or has a reasonable expectation of being liable with respect thereto.

-13-

     “ Indenture” means the Indenture and First Supplemental Indenture dated as of October 22, 2004 and May 25, 2005, respectively, among BOP, as Issuer, BRT, as Parent Guarantor, and The Bank of New York, as Trustee.

      “Initial Revolving Loan Maturity Date” means December 22, 2009.

     “ Interest Coverage Ratio ” means, for any period, the ratio of (a) Adjusted NOI for such period to (b) Interest Expense for such period.

     “ Interest Expense ” means, for any period, with respect to the Combined Parties, all net interest expense, whether paid or accrued (including that portion applicable to Capital Leases in accordance with GAAP) plus capitalized interest.

     “ Interest Payment Date ” means (a) as to Base Rate Loans, the last Business Day of each month and the Revolving Loan Maturity Date, (b) as to any Eurodollar Loan having an Interest Period of three months or less or as to any Competitive Bid Loan, the last day of such Interest Period and the Revolving Loan Maturity Date, and (c) as to any Eurodollar Loan having an Interest Period longer than three months, the day which is three months after the first day of such Interest Period, the last day of such Interest Period, and the Revolving Loan Maturity Date.

     “ Interest Period ” means, (i) as to Eurodollar Loans, a period of one, two, three or six months’ duration as the Borrowers may elect or (ii) as to Competitive Bid Loans, a period of one, two or three months’ duration as the Borrowers may elect, commencing, in each case, on the date of the borrowing (including, as applicable, continuations and conversions thereof); provided, however, (a) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (b) no Interest Period shall extend beyond the Revolving Loan Maturity Date, (c) where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month, and (d) no Interest Period shall extend beyond the Initial Revolving Loan Maturity Date unless the Revolving Loan Maturity Date has been extended pursuant to Section 3.5(b).

     “ Interest Rate Hedges ” has the meaning set forth in Section 7.13.

     “ Interim Facility ” means the up to $100,000,000 Interim Loan Agreement that the Borrowers, JPMorgan Chase Bank, N.A. and certain other parties may enter into on or about the date of the Acquisition.

     “ Investment ” in any Person means (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets, shares of capital stock, bonds, notes, debentures, partnership interests, membership interests, joint ventures or other ownership interests or other securities of such other Person or (b) any deposit with, or advance, loan or other extension of credit to, such Person (other than deposits made in connection with the purchase of equipment or other assets in the ordinary course of business) or (c) any other capital contribution to or investment in such Person, including, without limitation, any Guaranty Obligation (including any support for a letter of credit issued on behalf of such Person) incurred for the benefit of such Person.

     “ Investment Grade Rating ” means an Unsecured Senior Debt Rating of (a) BBB- or better from S&P, (b) Baa3 or better from Moody’s or (c) BBB- or better from Fitch, as applicable.

     “ Invitation for Competitive Bid Quotes ” means an Invitation for Competitive Bid Quotes substantially in the form of Exhibit 2.2(c).

     “ Issuing Lender ” means JPMorgan Chase Bank, N.A., Bank of America, N.A., any successor Person serving as Administrative Agent and/or any other Lender designated by the Administrative Agent. Any reference in this Credit Agreement to the Issuing Lender shall be deemed to be a reference to the applicable Issuing Lender that has issued or is issuing the Letter of Credit in question.

     “ Issuing Lender Fees ” has the meaning set forth in Section 3.4(b)(ii).

     “ Lender ” means (a) the Person serving as the Administrative Agent, any of the other financial institutions party to this Credit Agreement, or any other Person which may provide an additional Commitment and become a party to this Credit Agreement or becomes an assignee of any rights to a Lender pursuant to Section 11.3, together with their successors and permitted assigns and (b) each Designated Bank; provided, however , that the term “Lender” shall exclude each Designated Bank when used in reference to a Committed Loan, the Commitments or terms relating to the Committed Loans and the Commitments and shall further exclude each Designated Bank for all other purposes hereunder except that any Designated Bank which funds a Competitive Bid Loan shall, subject to Section 11.3(e)), have the rights (including the rights given to a Lender contained in Section 11.5 and otherwise in Section 11) and obligations of a Lender associated with holding such Competitive Bid Loan.

-14-

     “ Letter of Credit ” means a letter of credit issued for the account of a Credit Party by an Issuing Lender pursuant to Section 2.3 or any Existing Letter of Credit, as such letter of credit may be amended, modified, extended, renewed or replaced.

     “ Letter of Credit Fees ” has the meaning set forth in Section 3.4(b)(i).

     “ Leverage Ratio ” means the ratio of (a) Funded Debt to (b) the sum (the “ Total Asset Value ”) of (i) Property Value plus (ii) all unrestricted cash of the Combined Parties plus (iii) all Cash Equivalents of the Combined Parties plus (iv) all unrestricted tenant security deposits held by the Combined Parties plus (v) the aggregate of all amounts of the Combined Parties incurred and paid with respect to Construction-in-Process and Eligible Land, which credit will be limited to 20% of Total Asset Value in the aggregate and 15% of Total Asset Value for any single project or parcel, plus (vi) all notes receivable of the Combined Parties, which credit will be limited to 5% of Total Asset Value, plus (vii) all investments of the Combined Parties in (based on the actual cash investment in), directly or indirectly, entities (other than Combined Parties) holding real estate assets, which credit will be limited to 2.5% of Total Asset Value; provided that (A) the amount included in Total Asset Value pursuant to clause (b)(i) above with respect to any Pre-Stabilized Acquisition Property shall be calculated by using the higher of (x) 50% of the value at cost to the Combined Parties of such Pre-Stabilized Acquisition Property or (y) the Property Value of such Pre-Stabilized Acquisition Property and (B) from the Closing Date through December 31, 2006, the amount included in Total Asset Value pursuant to clause (b)(i) above with respect to the Property known as Cira Centre in Philadelphia, Pennsylvania shall be calculated by using the pro-forma Property Value of such Property based on executed leases for such Property.

     “ LIBOR Auction ” means a solicitation of Competitive Bid Quotes setting forth Competitive Bid Margins based on the Eurodollar Rate pursuant to Section 2.2.

     “ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind, including, without limitation, any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof.

     “ Loan ” or “ Loans ” means the Revolving Loans (or a portion of any Revolving Loan), the Swing Loans, and the Competitive Bid Loans, individually or collectively, as applicable.

     “ LOC Commitment ” means the commitment of the Issuing Lenders to issue Letters of Credit for the account of any Credit Party or any of its Subsidiaries in an aggregate face amount any time outstanding (together with the amounts of any unreimbursed drawings thereon) of up to the LOC Committed Amount.

     “ LOC Committed Amount ” means $65,000,000.

     “ LOC Documents ” means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or at risk or (b) any collateral security for such obligations.

     “ LOC Obligations ” means, at any time, the sum, without duplication, of (a) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (b) the aggregate amount of all drawings under Letters of Credit honored by an Issuing Lender but not theretofore reimbursed.

     “ LOC Participants ” means the Lenders.

     “ Mandatory Borrowing ” has the meaning set forth in Section 2.3(e).

     “ Master Agreement ” means the Master Agreement, dated as of October 3, 2005 by and between BOP and Prudential.

     “ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations, condition (financial or otherwise) or prospects of BRT, BOP or the Borrowers and their Subsidiaries taken as a whole, (b) the ability of a Borrower to perform its respective obligations under this Credit Agreement or any of the other Credit Documents, (c) the ability of a Guarantor to perform its respective obligations under any of the other Credit Documents, unless the Guarantor subject to such material adverse effect could be immediately released as a Guarantor in compliance with Section 8.5(b), or (d) the validity or enforceability of this Credit Agreement, any of the other Credit Documents, or the rights and remedies of the Lenders hereunder or thereunder taken as a whole.

-15-

     “ Material Subsidiary ” means any Eligible Unencumbered Property Subsidiary and any Subsidiary of a Borrower which is a Guarantor.

     “ Moody’s ” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.

     “ Multiemployer Plan ” means a Plan which is a multiemployer plan as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

     “ Multiple Employer Plan ” means a Plan (other than a Multiemployer Plan) in which a Borrower, a Subsidiary of a Borrower or any ERISA Affiliate and at least one employer other than a Borrower, a Subsidiary of a Borrower or any ERISA Affiliate are contributing sponsors.

     “ Net Cash Proceeds ” means, with respect to an Equity Issuance, the gross cash proceeds received from such Equity Issuance minus actual transaction costs and discounts of issuance payable to third parties in connection therewith.

     “ Net Income ” means, for any period, the net income for such period of the Combined Parties, as determined in accordance with GAAP.

     “ Net Worth ” means, as of any date, the net worth of the Borrowers and their Subsidiaries on a consolidated basis, as determined in accordance with GAAP.

     “ NOI ” means, for any period, an amount equal to (a) Net Income for such period (excluding the effect of any extraordinary or other non-recurring gains or losses or other non-cash losses outside the ordinary course of business) plus (b) an amount which in the determination of Net Income for such period has been deducted for (i) proceeds to minority interests, (ii) income taxes, (iii) depreciation and amortization and (iv) Interest Expense, less (c) 3% of the total real estate revenue of the Combined Parties as a property management expense.

     “ Non-Excluded Taxes ” has the meaning set forth in Section 3.13.

     “ Non-Recourse Indebtedness ” means any Indebtedness: (a) under the terms of which the payee’s remedies upon the occurrence of an event of default are limited to specific, identified assets of the payor which secure such Indebtedness and (b) for the repayment of which neither a Borrower nor any Subsidiary of a Borrower (other than a special purpose Subsidiary of a Borrower which owns such assets) has any personal liability beyond the loss of such specified assets, except for liability for fraud, material misrepresentation or misuse or misapplication of insurance proceeds, condemnation awards, existence of hazardous wastes or other customary exceptions to non-recourse provisions.

     “ Note ” or “ Notes ” means the Revolving Notes, any promissory notes issued to the Lenders to evidence Competitive Bid Loans made by Lenders, the Designated Bank Notes, and any promissory notes issued to the Swing Lender, individually or collectively, as appropriate.

     “ Notice of Borrowing ” means a request by the Borrowers for a Committed Loan, in the form of Exhibit 2.1(c).

     “ Notice of Competitive Bid Borrowing ” has the meaning set forth in Section 2.2(f).

     “ Notice of Continuation/Conversion ” means a request by the Borrowers to continue an existing Eurodollar Loan to a new Interest Period or to convert a Eurodollar Loan to a Base Rate Loan or to convert a Base Rate Loan to a Eurodollar Loan, in the form of Exhibit 2.1(f).

     “ Obligations ” means, without duplication, all of the obligations, liabilities and indebtedness of the Credit Parties to the Lenders and the Administrative Agent, whenever arising, under this Credit Agreement, the Notes or any of the other Credit Documents to which a Credit Party is a party, including without limitation the outstanding principal amount of the Loans.

     “ Participation Interest ” means the Extension of Credit by a Lender by way of a purchase of a participation in any Loans as provided in Sections 2.1(b) or 3.8, or in any Letters of Credit or LOC Obligations as provided in Section 2.3.

     “ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor thereto.

-16-

     “ Permitted Investments ” means, subject in all cases to Sections 7.10, 7.15 and 8.5(b), Investments which are (a) cash or Cash Equivalents, (b) accounts receivable and accrued rents receivable created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, (c) Investments by a Borrower or one of its Subsidiaries in another Borrower or Subsidiary, (d) earnest money and similar deposits in respect of Properties made in the ordinary course of business, (e) (i) the Acquisition and (ii) the acquisition of other new Properties; provided that the Borrowers and their Subsidiaries may not invest in undeveloped land in excess of 5% of Total Asset Value, in the aggregate, except for Eligible Land, (f) Investments in joint ventures (whether or not Subsidiaries) not to exceed, in the aggregate at any one time, 15% of Total Asset Value, (g) Investments existing on the date hereof in certain special purpose entities listed on Schedule 8.6 , (h) Investments in Construction-in-Process in which the aggregate full-budgeted costs of construction of all Construction-in-Process do not exceed, in the aggregate at any one time, 20% of Total Asset Value; (i) repurchases by a Borrower or any Subsidiary of its capital stock or shares of beneficial interest (including the repurchase of stock or shares of beneficial interest that is retired, cancelled or terminated) or other ownership interests (including options, warrants and stock appreciation rights) as long as prior to and after giving effect thereto, no Default or Event of Default exists; and (j) Investments not otherwise described in or covered by the other subclauses of this definition including, without limitation, loans to officers, directors and employees; provided that (i) such Investments do not exceed, in the aggregate at any one time, 5% of Total Asset Value and (ii) such Investments, together with the Investments referred to in subclauses (e)(ii), (f) and (h), do not exceed (in the aggregate at any one time) 25% of Total Asset Value.

     “ Permitted Liens ” means (a) Liens securing Obligations, (b) Liens for taxes not yet due or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof), (c) Liens in respect of property imposed by law arising in the ordinary course of business such as materialmens’, mechanics’, warehousemens’, carriers’, landlords’ and other nonconsensual statutory Liens which are not yet due and payable or which are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof); (d) Liens arising from good faith deposits in connection with or to secure performance of tenders, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (other than obligations in respect of the payment of borrowed money), (e) Liens arising from good faith deposits in connection with or to secure performance of statutory obligations and surety and appeal bonds, (f) easements, rights-of-way, restrictions (including zoning restrictions), matters of plat, minor defects or irregularities in title and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered property for its intended purposes, (g) judgment Liens that would not constitute an Event of Default, (h) Liens arising by virtue of any statutory or common law provision relating to bankers’ liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a creditor depository institution, (i) Liens in connection with Indebtedness permitted by Section 8.1(c); provided that if such Lien is created with respect to an Unencumbered Property, the Borrowers shall give the Administrative Agent written notice of the creation of such Lien in accordance with Section 7.15(b) (if applicable), and (j) Liens existing on the date hereof and identified on Schedule 8.2 ; provided that no such Lien shall extend to any property other than the property subject thereto on the Closing Date.

     “ Person ” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise (whether or not incorporated), or any Governmental Authority.

     “ Plan ” means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which a Borrower, any Subsidiary of a Borrower or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” within the meaning of Section 3(5) of ERISA.

     “ Pre-Stabilized Acquisition Properties ” means the Properties located at (i) 555 Radnor Financial Center, Radnor, Pennsylvania, (ii) 130-170 Radnor Financial Center, Radnor, Pennsylvania and (iii) 201 Radnor Financial Center, Radnor, Pennsylvania.

     “ Prentiss ” means Prentiss Properties Trust, a Maryland real estate investment trust.

-17-

     “ Pricing Level ” means, based upon the Unsecured Senior Debt Rating of the Borrowers, the corresponding category (I, II, III, or IV) within the Applicable Percentage table.

     “ Prime Rate ” means the per annum rate of interest announced publicly from time to time by the Person that is the Administrative Agent at its principal offices (or such other principal office of such Person as communicated in writing to the Borrowers and the Lenders) as its Prime Rate. Any change in the interest rate resulting from a change in the Prime Rate shall become effective at the opening of business on the day specified in the public announcement of such change. The Prime Rate is a rate set by the Person that is the Administrative Agent based upon various factors including such Person’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.

     “ Private Placement Notes ” means the $113,000,000 4.34% Notes issued pursuant to that certain Note Purchase Agreement dated as of November 14, 2004, as may be amended, restated or otherwise modified from time to time.

     “ Pro Forma Basis ” means with respect to (a) the sale of a Property or the sale of an equity interest in a Credit Party or Eligible Unencumbered Property Subsidiary, (b) the creation of a Lien on a Property or (c) the acquisition of or Investment in a Property or other asset that is subject to Section 7.15, that such sale, creation of Lien, acquisition or Investment shall be deemed to have occurred as of the first day of the four fiscal quarter period ending as of the last day of the most recent fiscal quarter for which the Lenders have received the financial information required by Section 7.1(b).

     “ Properties ” means all real properties owned or ground-leased by the Borrowers and their Subsidiaries whether directly or through a joint venture investment.

     “ Property Value ” means Annualized Modified Adjusted NOI divided by the Capitalization Rate; provided that (a) for any Property owned by a Borrower or a Subsidiary of a Borrower for fewer than twelve (12) months (other than the Acquisition Properties), the Property Value of such Property shall instead be its value at cost in accordance with GAAP and (b) from the Closing Date through June 30, 2007, each of the Acquisition Properties shall be valued at its cost to such Borrower or Subsidiary in accordance with GAAP.

     “ Prudential ” means The Prudential Insurance Company of America, a New Jersey corporation, and its assignees.

     “ Recourse Indebtedness ” means any Indebtedness other than Non-Recourse Indebtedness.

     “ Refunded Swing Loans ” has the meaning in Section 2.1(b)(iii).

     “ Refunding Date ” has the meaning in Section 2.1(b)(iv).

     “ Regulation D, O, T, U, or X ” means Regulation D, O, T, U or X, respectively, of the Board of Governors of the Federal Reserve System (or any successor body) as from time to time in effect and any successor to all or a portion thereof.

     “ REIT ” means a real estate investment trust as defined in Sections 856-860 of the Code.

     “ REIT Subsidiary ” means a Subsidiary of the Borrowers that is a REIT.

     “ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the notice requirement has been waived by regulation.

     “ Required Lenders ” means, at any time, the Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes at least 66 2/3% of the Credit Exposure of all Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders the aggregate principal amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term “Credit Exposure” as applied to each Lender shall mean (a) at any time prior to the termination of the Commitments, the Commitment of such Lender and (b) at any time after the termination of the Commitments, the sum of (i) the principal balance of the outstanding Loans of such Lender plus (ii) such Lender’s Participation Interests in the face amount of the outstanding Letters of Credit and the outstanding principal amount of Swing Loans.

     “ Requirement of Law ” means, as to any Person, the articles or certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or to which any of its material property is subject.

     “ Revolving Committed Amount ” means $600,000,000, as the same may be permanently reduced in accordance with Section 2.1(e) or increased from time to time pursuant to Section 2.7.

-18-

     “ Revolving Credit Availability ” means sum of the Revolving Committed Amount less the Revolving Credit Obligations.

     “ Revolving Credit Obligations ” means, at any particular time, the sum of (i) the outstanding principal amount of the Committed Loans at such time, plus (ii) the LOC Obligations at such time, plus (iii) the outstanding principal amount of the Competitive Bid Loans at such time.

     “ Revolving Loan Commitment Percentage ” means, for each Lender, the percentage identified as its Revolving Loan Commitment Percentage on Exhibit 1.1(a), as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.3.

     “ Revolving Loan Maturity Date ” means the earlier of (a) the Initial Revolving Loan Maturity Date or, if extended by the Borrowers pursuant to Section 3.5(b), December 22, 2010 and (b) the date of termination of the Commitments pursuant to the terms of this Credit Agreement.

     “ Revolving Loans ” has the meaning set forth in Section 2.1(a).

     “ Revolving Note ” or “ Revolving Notes ” means the promissory notes of the Borrowers in favor of each of the Lenders evidencing the Revolving Loans provided pursuant to Section 2.1, individually or collectively, as appropriate, as such promissory notes may be amended, modified, supplemented, extended, renewed or replaced from time to time and in the form of Exhibit 2.1(h).

     “ S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any successor or assignee of the business of such division in the business of rating securities.

     “ Secured Debt ” means all Funded Debt of the Combined Parties that is subject to a Lien in favor of the creditor holding such Funded Debt; provided that any Funded Debt owed to the Lenders hereunder shall be considered to be Unsecured Debt even if a Lien has been granted in favor of the Lenders.

     “ Secured Debt Ratio ” means the ratio of (a) Secured Debt to (b) Property Value plus, to the extent Secured Debt includes Funded Debt on Construction-in-Process, total construction costs incurred as of such date with respect to such Construction-in-Process.

     “ Significant Subsidiary ” means any Eligible Unencumbered Property Subsidiary, any Subsidiary of the Borrowers which is a Guarantor, and any other Subsidiary of the Borrowers which contributes at least $25,000,000 to Total Asset Value.

     “ Single Employer Plan ” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.

     “ Solvent ” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

     “ Spin-Out ” means the transfer to Prudential of the Specified Assets (as defined in the Merger Agreement) as provided in the Master Agreement and the Acquisition Purchase Agreement.

     “ Subsidiary ” means, as to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time, any class or classes of stock of such corporation shall have or might have voting power by reason of the lapse of time or the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, and (b) any partnership, association, joint venture, limited liability company, trust or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest or 50% Capital Percentage at any time.

     “ Swing Lender ” means JPMorgan Chase Bank, N.A. or any successor Swing Lender or any other Lender designated by the Administrative Agent.

-19-

     “ Swing Loan ” means a Loan made by the Swing Lender pursuant to Section 2.1(b).

     “ Swing Loan Commitment ” means the lesser of (a) $50,000,000 or (b) the Revolving Credit Availability, without giving effect to outstanding Swing Loans.

     “ Swing Loan Rate ” means, with respect to any Swing Loan, the Adjusted Base Rate or such other rate per annum as may be determined by agreement between the Borrowers and the Swing Lender.

     “ Swing Loan Refund Amount ” means has the meaning set forth in Section 2.1(b)(iii).

     “ Term Loan Facility ” means the approximately $750,000,000, 364-day Term Loan Agreement to be entered into by the Borrowers, JPMorgan Chase Bank, N.A., as administrative agent, and certain lenders on or about the date of the Acquisition.

     “ Termination Event ” means (a) with respect to any Single Employer Plan, the occurrence of a Reportable Event or the substantial cessation of operations (within the meaning of Section 4062(e) of ERISA); (b) the withdrawal of any Borrower or any of its Subsidiaries or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (c) the distribution of a notice of intent to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to terminate or the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition which might reasonably constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; or (f) the complete or partial withdrawal of any Borrower or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.

     “ Total Asset Value ” has the meaning assigned to such term in the definition of Leverage Ratio.

     “ Unencumbered Cash Flow Ratio ” means the ratio of (a) Annualized Modified Adjusted NOI with respect to Unencumbered Properties to (b) Interest Expense on Unsecured Debt for the twelve (12) month period ending on the date of determination.

     “ Unencumbered Construction-in-Process ” means all Construction-in-Process that is (i) wholly-owned by a Credit Party or an Eligible Subsidiary that is a Wholly-Owned Subsidiary of the Borrowers, (ii) not subject to a Lien or negative pledge other than (a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to secure the Obligations, and (iii) not subject to a significant environmental release, Environmental Claim or other violation of Environmental Laws.

      “Unencumbered Construction-in-Process and Eligible Land Value ” means the sum of Unencumbered Construction-in-Process and Unencumbered Eligible Land, in each case valued at the lower of cost or market.

     “ Unencumbered Eligible Land ” means all Eligible Land that is (i) wholly-owned by a Credit Party or an Eligible Subsidiary that is a Wholly-Owned Subsidiary of the Borrowers, (ii) not subject to a Lien or negative pledge other than (a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to secure the Obligations, and (iii) not subject to a significant environmental release, Environmental Claim or other violation of Environmental Laws.

     “ Unencumbered Properties ” means all Properties that are (i) wholly-owned or leased under an Eligible Ground Lease by a Credit Party or an Eligible Subsidiary that is a Wholly-Owned Subsidiary of the Borrowers, (ii) not subject to a Lien or negative pledge other than (a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to secure the Obligations, (iii) improved with a building that has received a certificate of occupancy, and (iv) not subject to a significant environmental release, Environmental Claim or other violation of Environmental Laws.

     “ Unencumbered Property Value ” means the sum of (i) Property Value with respect to all Unencumbered Properties, plus (ii) the aggregate amount of unrestricted cash and Cash Equivalents in excess of $25,000,000; provided that Unencumbered Property Value with respect to any Pre-Stabilized Acquisition Property (so long as such Property constitutes an Unencumbered Property) shall be calculated by using the higher of (x) 50% of the value at cost to the Combined Parties of such Pre-Stabilized Acquisition Property or (y) the Property Value of such Pre-Stabilized Acquisition Property.

     “ Unencumbered Value ” means the sum of Unencumbered Property Value plus Unencumbered Construction-in-Process and Eligible Land Value; provided that (i) no property shall account for more than 15% of Unencumbered Value and (ii) Unencumbered Construction-in-Process and Eligible Land Value shall not account for more than 15% of Unencumbered Value.

-20-

     “ Unsecured Debt ” means the sum of all Funded Debt of the Combined Parties that was incurred, and continues to be outstanding, without granting a Lien to the creditor holding such Funded Debt; provided that all Funded Debt of the Combined Parties owing to the Lenders under this Credit Agreement shall be considered to be Unsecured Debt even if a Lien has been granted in favor of the Lenders.

     “ Unsecured Senior Debt Rating ” means either (a) if BRT or BOP has issued unsecured, senior, long term, non-credit enhanced debt, the debt rating provided by S&P, Moody’s or Fitch with respect to such unsecured, senior, long term, non-credit enhanced debt, or (b) if BRT or BOP has not issued unsecured, senior, long term, non-credit enhanced debt, the issuer rating for BRT or BOP provided by Moody’s or Fitch or the corporate credit rating for BRT or BOP provided by S&P.

     “ Wholly-Owned Subsidiary of the Borrowers ” means a Subsidiary of a Borrower in which the Borrowers directly or indirectly own 100% of the equity interests (excluding those equity interests that are owned by other Persons in order to permit such Subsidiary to qualify as a REIT, so long as the Borrowers directly or indirectly own at least 99% of the equity interests in such Subsidiary and control decisions regarding the sale and financing of all Properties owned by such Subsidiary).

     1.2  Computation of Time Periods and Other Definition Provisions.

     For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” References in this Credit Agreement to “Articles”, “Sections”, “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules or Exhibits of or to this Credit Agreement unless otherwise specifically provided. References in this Credit Agreement to “during the term of this Credit Agreement” shall mean the period from the Effective Date to the earlier of the Revolving Loan Maturity Date or the acceleration of the Loans pursuant to Section 9.2.

     1.3  Accounting Terms.

     Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis, and excluding the effects of consolidation of investments in non-wholly owned subsidiaries under Interpretation No. 46 of the Financial Accounting Standards Board. All financial statements delivered to the Lenders hereunder shall be accompanied by a statement from the Borrowers that GAAP has not changed since the most recent financial statements delivered by the Borrowers to the Lenders or, if GAAP has changed, describing such changes in detail and explaining how such changes affect the financial statements. All calculations made for the purposes of determining compliance with this Credit Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 7.1 (or, prior to the delivery of the first financial statements pursuant to Section 7.1, consistent with the financial statements described in Section 5.1(k)); provided, however, if (a) the Borrowers shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Administrative Agent or the Required Lenders shall so object in writing within 60 days after delivery of such financial statements (or after the Lenders have been informed of the change in GAAP affecting such financial statements, if later), then such calculations shall be made on a basis consistent with the most recent financial statements delivered by the Borrowers to the Lenders as to which no such objection shall have been made.

-21-

     1.4  Joint Venture Investments.

     For purposes of calculating the financial covenants in Section 7.2 (including the definitions used therein) and the definition of Permitted Investments, (a) NOI, Adjusted NOI, Annualized Modified Adjusted NOI, Property Value and Interest Expense shall be calculated, to the extent applicable, to include the pro-rata share (as determined by their respective percentage interests in the profits and losses of such joint venture) of results attributable to the Borrowers and their Subsidiaries from joint ventures and (b) Indebtedness and Funded Debt shall be calculated as follows: (i) if the Indebtedness of a joint venture is recourse to such Borrower (or Subsidiary), then the amount of such Indebtedness or Funded Debt that is recourse to such Borrower (or Subsidiary), without duplication, and (ii) if the Indebtedness of such joint venture is not recourse to such Borrower (or Subsidiary), then such Borrower’s (or Subsidiary’s) pro-rata share of such Indebtedness or Funded Debt as determined by its percentage interest in the profits and losses of such joint venture. For purposes of this Section 1.4, Indebtedness of a joint venture that is recourse to a Borrower or one of its Subsidiaries solely as a result of such Borrower (or Subsidiary) being a partner or member in such joint venture shall be treated as not recourse to such Borrower (or Subsidiary) as long as the only assets owned by such Borrower (or Subsidiary) are its equity interest in such joint venture and any contributed capital held to fund such equity interest.

SECTION 2.

CREDIT FACILITY

     2.1  Revolving Loans.

(a)  Revolving Loan Commitment . Subject to the terms and conditions set forth herein and pursuant to this Section 2.1, each Lender severally agrees to make revolving loans (each a “ Revolving Loan ” and collectively the “ Revolving Loans ”) to the Borrowers, in Dollars, at any time and from time to time, during the period from and including the Effective Date to but not including the Revolving Loan Maturity Date or such earlier date as the Revolving Committed Amount has been terminated as provided herein; provided, however, that (i) the sum of the aggregate principal amount of Loans outstanding plus the aggregate amount of LOC Obligations outstanding shall not exceed the Revolving Committed Amount, (ii) with respect to each individual Lender, such Lender’s pro rata share of outstanding Committed Loans plus such Lender’s pro rata share of outstanding LOC Obligations shall not exceed such Lender’s Commitment and (iii) the aggregate principal amount of such Revolving Loan shall not exceed the Revolving Credit Availability at such time. Subject to the terms of this Credit Agreement (including Section 3.3), the Borrowers may borrow, repay and reborrow Revolving Loans. The Administrative Agent shall keep a record of the purpose for which each of the Loans was advanced (and of repayments applied thereto), which record shall be conclusive absent prima facie error.

 

	(b) Swing Loans.

 

		(i)  Basic Terms . During the term of this Credit Agreement, the Swing Lender agrees, on the terms and conditions set forth in this Credit Agreement, to make loans to the Borrowers in Dollars pursuant to this Section 2.1(b)(i) from time to time in amounts such that after giving effect to each such loan (A) the aggregate principal amount of Swing Loans does not at any time exceed the Swing Loan Commitment and (B) the sum of the aggregate principal amount of Loans outstanding plus the aggregate amount of LOC Obligations outstanding does not exceed the Revolving Committed Amount. Each borrowing under this Section 2.1(b)(i) shall be in an aggregate principal amount of at least $1,000,000 and in integral multiples of $500,000 in excess of such amount. Within the foregoing limits, the Borrowers may borrow under this Section 2.1(b)(i), repay or, to the extent permitted by Section 3.3, prepay Swing Loans and reborrow at any time during the term of this Credit Agreement under this Section 2.1(b)(i). Notwithstanding anything to the contrary contained herein, the Swing Lender shall not make a Swing Loan without the consent of the Required Lenders after the occurrence and during the continuance of a Default or without the consent of all of the Lenders after the occurrence and during the continuance of an Event of Default.

 

		(ii)  Repayment and Interest . Each Swing Loan is due and payable on the earliest to occur of (A) seven (7) Business Days after the date of the making of such Swing Loan, (B) the date of the next borrowing under the Commitments that is not a Swing Loan, and (C) the Revolving Loan Maturity Date. Except as otherwise provided in Section 3.1(b), Swing Loans shall bear interest at the Swing Loan Rate.

-22-

(iii)  Conversion of Swing Loans . The Swing Lender (A) may, at any time in its sole discretion with respect to any outstanding Swing Loans and (B) shall, on any of the dates set forth in clauses (A) – (C) of Section 2.1(b)(ii), on behalf of the Borrowers (which hereby irrevocably direct the Swing Lender to act on their behalf), request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan that is a Base Rate Loan in an amount (with respect to each Lender, its “ Swing Loan Refund Amount ”) equal to such Lender’s Revolving Loan Commitment Percentage of the aggregate principal amount of the Swing Loans (the “ Refunded Swing Loans ”) outstanding on the date of such notice, to repay the Swing Lender. Unless any of the events described in Section 9.1(e) with respect to either Borrower shall have occurred and be continuing or Revolving Loans cannot otherwise be made on such date (in which case the terms of Section 2.1(b)(iv) shall govern), each Lender shall make such Base Rate Loan available to the Administrative Agent at its principal office in New York City, New York, or such other address as the Administrative Agent may designate in writing, in immediately available funds, not later than 12:00 noon (New York time), on the Business Day immediately following the date of such request. The Administrative Agent shall pay the proceeds of such Base Rate Loans to the Swing Lender, which shall immediately apply such proceeds to repay Refunded Swing Loans. Effective on the day such Base Rate Loans are made, the portion of the Swing Loans so paid shall no longer be outstanding as Swing Loans, shall no longer be due as Swing Loans under the Note held by the Swing Lender, and shall be due as Base Rate Loans under the respective Notes issued to the Lenders (including the Swing Lender) in accordance with their respective Revolving Loan Commitment Percentages. The Borrowers authorize the Swing Lender to charge the Borrowers’ accounts with the Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of such Refunded Swing Loans to the extent amounts received from the Lenders are not sufficient to repay in full such Refunded Swing Loans.

 

		(iv)  Purchase of Participations in Swing Loans . If, prior to the time Revolving Loans would have otherwise been made pursuant to Section 2.1(b)(iii), any of the events described in Section 9.1(e) with respect to either Borrower shall have occurred and be continuing or Revolving Loans cannot otherwise be made on such date, each Lender shall, on the date any such Revolving Loans were to be made pursuant to the request referred to in Section 2.1(b)(iii) (the “ Refunding Date ”), purchase an undivided Participation Interest in the Swing Loans in an amount equal to such Lender’s Swing Loan Refund Amount. On the Refunding Date, each Lender shall transfer to the Swing Lender, in immediately available funds, such Lender’s Swing Loan Refund Amount, and upon receipt thereof the Swing Lender shall deliver to such Lender a Swing Loan participation certificate dated the date of the Swing Lender’s receipt of such funds and in the Swing Loan Refund Amount of such Lender.

 

		(v)  Payments on Participated Swing Loans . Whenever, at any time after the Swing Lender has received from any Lender such Lender’s Swing Loan Refund Amount pursuant to Section 2.1(b)(iv), the Swing Lender receives any payment on account of the Swing Loans in which the Lenders have purchased Participation Interests pursuant to Section 2.1(b)(iv), the Swing Lender will promptly distribute to each such Lender its ratable share (determined on the basis of the Swing Loan Refund Amounts of all of the Lenders) of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Participation Interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Lender is required to be returned, such Lender will return to the Swing Lender any portion thereof previously distributed to it by the Swing Lender.

 

		(vi)  Obligations to Refund or Purchase Participations in Swing Loans Absolute . Each Lender’s obligation to transfer the amount of a Revolving Loan to the Swing Lender as provided in Section 2.1(b)(iii) or to purchase a Participation Interest pursuant to Section 2.1(b)(iv) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender, the Borrowers or any other Person may have against the Swing Lender or any other Person, other than the Swing Lender’s gross negligence or willful misconduct in connection with making any such Swing Loan, (B) the occurrence or continuance of a Default or an Event of Default or the termination or reduction of the Revolving Committed Amount, subject to the consent requirements of Section 2.1(b)(i), (C) any adverse change in the condition (financial or otherwise) of either of the Borrowers or any other Person, (D) any breach of this Credit Agreement by either of the Borrowers, any other Lender or any other Person, or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

-23-

(c)  Method of Borrowing for Committed Loans . By no later than 11:00 a.m. (10:00 a.m. for Swing Loans) (i) one Business Day prior to the date of the requested borrowing of Revolving Loans that will be Base Rate Loans, (ii) three Business Days prior to the date of the requested borrowing of Revolving Loans that will be Eurodollar Loans or (iii) on the day of the requested borrowing of any Swing Loans, the Borrowers shall submit an irrevocable written Notice of Borrowing in the form of Exhibit 2.1(c) to the Administrative Agent setting forth (A) the amount requested, (B) whether such Committed Loans shall be Swing Loans, Revolving Loans that will be Base Rate Loans or Revolving Loans that will be Eurodollar Loans, (C) with respect to Revolving Loans that will be Eurodollar Loans, the Interest Period applicable thereto, (D) the purpose of the proceeds of the requested Committed Loans, (E) a certification that the Borrowers have complied in all respects with Section 5.2 and (F) the date of borrowing.

 

	(d)  Funding of Committed Loans . Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly inform the Lenders (or in the case of a request for a Swing Loan, the Swing Lender) as to the terms thereof. Each Lender shall make its Revolving Loan Commitment Percentage of the requested Committed Loans (or in the case of a Swing Lender, the full amount of Swing Loan) available to the Administrative Agent by 1:00 p.m. on the date specified in the Notice of Borrowing by deposit, in Dollars, of immediately available funds to the Administrative Agent at its principal office in New York City, New York or at such other address as the Administrative Agent may designate in writing. The amount of the requested Committed Loans will then be made available to the Borrowers by the Administrative Agent by crediting the account of the Borrowers on the books of such office of the Administrative Agent, to the extent the amount of such Committed Loans are made available to the Administrative Agent.
	No Lender shall be responsible for the failure or delay by any other Lender in its obligation to make Committed Loans hereunder; provided, however, that the failure of any Lender to fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any Committed Loan that such Lender does not intend to make available to the Administrative Agent its portion of the Committed Loans to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of such Committed Loans, and the Administrative Agent in reliance upon such assumption, may (in its sole discretion but without any obligation to do so) make available to the Borrowers a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify the Borrowers, and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from such Lender or the Borrowers, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrowers to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (i) from the Borrowers at the applicable rate for such Committed Loan pursuant to the Notice of Borrowing and (ii) from such Lender at the Federal Funds Rate.

 

(e)  Reduction or Termination of Revolving Committed Amount . Upon at least three Business Days’ notice to the Administrative Agent, the Borrowers shall have the right to permanently terminate or reduce the aggregate unused amount of the Revolving Committed Amount or the Swing Loan Commitment at any time or from time to time; provided that (i) each partial reduction shall be in an aggregate amount at least equal to $5,000,000 and in integral multiples of $1,000,000 above such amount and (ii) no reduction shall be made which would reduce the Revolving Committed Amount to an amount less than the lesser of (A) the aggregate amount of outstanding Loans plus the aggregate amount of outstanding LOC Obligations or (B) $200,000,000. Any reduction in (or termination of) the Revolving Committed Amount shall be permanent and may not be reinstated. The Administrative Agent shall immediately notify the Lenders of any reduction in the Revolving Committed Amount and each Lender’s Commitment shall be reduced pro rata in accordance with each Lender’s Revolving Loan Commitment Percentage.

-24-

(f)  Continuations and Conversions . The Borrowers shall have the option with respect to any Revolving Loan, on any Business Day, to continue existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate Loans into Eurodollar Loans, or to convert Eurodollar Loans into Base Rate Loans; provided, however, that (i) each such continuation or conversion must be requested by the Borrowers pursuant to a written Notice of Continuation/Conversion, in the form of Exhibit 2.1(f), in compliance with the terms set forth below, (ii) except as provided in Section 3.11, Eurodollar Loans may only be continued or converted on the last day of the Interest Period applicable thereto, (iii) Eurodollar Loans may not be continued nor may Base Rate Loans be converted into Eurodollar Loans during the existence and continuation of a Default or Event of Default and (iv) any request to continue a Eurodollar Loan that fails to comply with the terms hereof or any failure to request a continuation of a Eurodollar Loan at the end of an Interest Period shall result in a conversion of such Eurodollar Loan to a Base Rate Loan on the last day of the applicable Interest Period. Each continuation or conversion must be requested by the Borrowers no later than 11:00 a.m. (A) one Business Day prior to the date for a requested conversion of a Eurodollar Loan to a Base Rate Loan or (B) three Business Days prior to the date for a requested continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in each case pursuant to a written Notice of Continuation/Conversion submitted to the Administrative Agent (which shall promptly notify each of the Lenders) which shall set forth (x) whether the Borrowers wish to continue or convert such Loans and (y) if the request is to continue a Eurodollar Loan or convert a Loan to a Eurodollar Loan, the Interest Period applicable thereto.

 

(g)  Minimum Amounts/Restrictions on Loans . Each request for a borrowing, conversion or continuation of a Revolving Loan shall be subject to the requirements that (i) each Eurodollar Loan shall be in a minimum amount of $1,000,000 and in integral multiples of $100,000 in excess thereof, (ii) each Base Rate Loan shall be in a minimum amount of $500,000 or the remaining amount available under the Revolving Committed Amount and (iii) no more than eight Eurodollar Loans shall be outstanding at any one time. For the purposes of this Section 2.1(g), all Eurodollar Loans with the same Interest Periods beginning on the same date shall be considered as one Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if they begin or end on the same date, shall be considered as separate Eurodollar Loans.

 

(h)  Notes . The Revolving Loans made by each Lender shall be evidenced by a duly executed promissory note of the Borrowers to each Lender in substantially the form of Exhibit 2.1(h). Each Lender may, by notice to the Borrowers and the Administrative Agent, request that its Competitive Bid Loans and Swing Loans be evidenced by a separate Note in an amount equal to the aggregate unpaid principal amount of such Loans. Each such Note shall be in substantially the form of Exhibit 2.1(h) with appropriate modifications.

2.2  Competitive Bid Option.

(a)  The Competitive Bid Option . For so long as either of the Borrowers shall maintain at least two (2) Investment Grade Ratings, the Borrowers may, as set forth in this Section 2.2, request that the Administrative Agent solicit the Lenders to make offers to make Competitive Bid Loans to the Borrowers (a “ Competitive Bid Quote Request ”), such Competitive Bid Loan not to exceed, at such time (i) together with all Competitive Bid Loans then outstanding, fifty percent (50%) of the Revolving Committed Amount, or (ii) the then Revolving Credit Availability. Subject to the provisions of this Credit Agreement, the Borrowers may repay any outstanding Competitive Bid Loan on any day which is a Business Day and any amounts so repaid may be reborrowed, up to the amount available under this Section 2.2(a) at the time of such borrowing, until the Business Day next preceding the Revolving Loan Maturity Date. The Lenders may, but shall have no obligation to, make such offers and the Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.2. The Competitive Bid Loans outstanding under the Existing Credit Agreement on the date hereof and listed on Schedule 2.2 shall become and be deemed to be Competitive Bid Loans outstanding under this Credit Agreement.

-25-

(b)  Competitive Bid Quote Request . When the Borrowers wish to request offers to make Competitive Bid Loans under this Section 2.2, the Borrowers shall transmit to the Administrative Agent by telex or facsimile transmission a Competitive Bid Quote Request substantially in the form of Exhibit 2.2(b) hereto so as to be received not later than 10:30 A.M. (New York City time) on the fourth (4th) Business Day prior to the date of borrowing proposed therein (or such other time or date as the Borrowers and the Administrative Agent shall have mutually agreed and shall have notified to the Lenders not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction for which such change is to be effective) specifying:

 

		(i)   the proposed date of the Loan, which shall be a Business Day;

 

		(ii)  the aggregate amount of such Loan, which shall be $5,000,000 or a larger multiple of $1,000,000 (which shall not exceed the Revolving Credit Availability);

 

		(iii) the duration of the Interest Period applicable thereto; and

 

		(iv) the amount of all Competitive Bid Loans then outstanding (which, together with the requested Competitive Bid Loans shall not exceed, in the aggregate, fifty percent (50%) of the Revolving Committed Amount).

 

	The Borrowers may request offers to make Competitive Bid Loans for one, two or three Interest Periods in a single Competitive Bid Quote Request. Borrowers may not make more than two (2) Competitive Bid Quote Requests in any thirty (30) day period.
	(c)  Invitation for Competitive Bid Quotes . Promptly upon receipt of a Competitive Bid Quote Request, the Administrative Agent shall send to the Lenders by telex or facsimile transmission an Invitation for Competitive Bid Quotes substantially in the form of Exhibit 2.2(c) hereto, which shall constitute an invitation by the Borrowers to each Lender to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance with this Section.

 

	(d)  Submission and Contents of Competitive Bid Quotes . (i) Each Lender may submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the requirements of this subsection (d) and must be submitted to the Administrative Agent by telex or facsimile transmission not later than 10:00 A.M. (New York City time) on the third (3rd) Business Day prior to the proposed date of borrowing (or such other time or date as the Borrowers and the Administrative Agent shall have mutually agreed and shall have notified the Lenders not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction for which such change is to be effective); provided that Competitive Bid Quotes submitted by the Person serving as the Administrative Agent (or any affiliate of the Person serving as the Administrative Agent) in the capacity of a Lender may be submitted, and may only be submitted, if the Person serving as the Administrative Agent or such affiliate notifies the Borrowers of the terms of the offer or offers contained therein not later than one-quarter (1/4) hour prior to the deadline for the other Lenders. Any Competitive Bid Quote so made shall be irrevocable, except with the written consent of the Administrative Agent given on the instruction of the Borrowers. Competitive Bid Loans to be funded pursuant to a Competitive Bid Quote may, as provided in Section 11.3(e), be funded by a Lender’s Designated Bank. A Lender making a Competitive Bid Quote may, but shall not be required to, specify in its Competitive Bid Quote whether the related Competitive Bid Loans are intended to be funded by such Lender’s Designated Bank, as provided in Section 11.3(e).

 

		(i) Each Competitive Bid Quote shall be in substantially the form of Exhibit 2.2(d)(ii) hereto and shall in any case specify:

 

			(A) the proposed date of borrowing;

 

			(B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Lender, (x) must be $5,000,000 or a larger multiple of $1,000,000 (or, if the Revolving Credit Availability then is less than $5,000,000, such lesser amount), (y) may not exceed the principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;

 

			(C) the margin above or below the applicable Eurodollar Rate (the “ Competitive Bid Margin ”) offered for each such Competitive Bid Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate offered for each Competitive Bid Loan; and

-26-

Back to Contents

(D) the identity of the quoting Lender.

 

		(ii) Any Competitive Bid Quote shall be disregarded if it:

 

			(A) is not substantially in conformity with Exhibit 2.2(d)(ii) hereto or does not specify all of the information required by subsection (d)(ii) above;

 

			(B) except as provided in subsection (d)(ii)(B)(z) above, proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes; or

 

			(C) arrives after the time set forth in subsection (d)(i) above.

 

(e)  Notice to Borrowers . The Administrative Agent shall promptly notify the Borrowers of the terms (x) of any Competitive Bid Quote submitted by a Lender that is in accordance with subsection (d) of this Section and (y) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Administrative Agent’s notice to the Borrowers shall specify (A) the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, (B) the principal amounts and Competitive Bid Margins so offered and (C) if applicable, limitations on the aggregate principal amount of Competitive Bid Loans for which offers in any single Competitive Bid Quote may be accepted.

 

(f)  Acceptance and Notice by Borrowers . Not later than 11:00 A.M. (New York City time) on the third (3rd) Business Day prior to the proposed date of borrowing (or such other time or date as the Borrowers and the Administrative Agent shall have mutually agreed and shall have notified the Lenders not later than the date of the Competitive Bid Quote Request for the first LIBOR Auction for which such change is to be effective), the Borrowers shall telephonically notify the Administrative Agent of their acceptance or non-acceptance of the offers so notified to them pursuant to subsection (e) of this Section 2.2, and the Borrowers shall confirm such telephonic notification in writing not later than the third (3 rd ) Business Day prior to the proposed date of borrowing. In the case of acceptance, such notice (a “ Notice of Competitive Bid Borrowing ”), whether telephonic or in writing, shall specify the aggregate principal amount of offers for each Interest Period that are accepted and shall be accompanied by an officer’s certificate of the Borrowers with respect to compliance with (including calculation of) Section 7.2. Any Competitive Bid Loan accepted by the Borrowers and made by the Lenders shall utilize the Revolving Committed Amount (but not the Commitments of the Lenders making such Competitive Bid Loan), and the Revolving Credit Availability shall be reduced by the amount of any Competitive Bid Loans. The Borrowers may accept any Competitive Bid Quote in whole or in part; provided that:

 

		(i)   the aggregate principal amount of each Competitive Bid Loan borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;

 

		(ii)  the principal amount of each Competitive Bid Loan borrowing must be $5,000,000 or a larger multiple of $1,000,000 (or, if the Revolving Credit Availability then is less than $5,000,000, such lesser amount);

 

		(iii) acceptance of offers may only be made on the basis of ascending Competitive Bid Margins; and

 

		(iv) the Borrowers may not accept any offer that is described in subsection (d)(iii) of this Section or that otherwise fails to comply with the requirements of this Credit Agreement.

 

(g)  Allocation by Administrative Agent . If offers are made by two or more Lenders with the same Competitive Bid Margins for a greater aggregate principal amount than the amount in respect of which such offers are permitted to be accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Lenders as nearly as possible (in multiples of $1,000,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers; provided , that the principal amount of such Competitive Bid Loans shall be allocated among such Lenders, in ascending order from those subject to the lowest Competitive Bid Margin to those subject to the highest Competitive Bid Margin, as applicable to provide to the Borrowers the lowest effective cost based on offers accepted. Determinations by the Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error. The Administrative Agent shall notify the Borrowers of all offers.

-27-

(h)  Notification by Administrative Agent . Upon receipt of the Borrowers’ Notice of Competitive Bid Borrowing in accordance with Section 2.2(f) hereof, the Administrative Agent shall, on the date such Notice of Competitive Bid Borrowing is received by the Administrative Agent, notify each Lender of the principal amount of the Competitive Bid Loan borrowing accepted by the Borrowers and of such Lender’s share (if any) of such Competitive Bid Loan borrowing and such Notice of Competitive Bid Borrowing shall not thereafter be revocable by the Borrowers. A Lender who is notified that it has been selected to make a Competitive Bid Loan may designate its Designated Bank (if any) to fund such Competitive Bid Loan on its behalf, as described in Section 11.3(e). Any Designated Bank which funds a Competitive Bid Loan shall on and after the time of such funding become the obligee under such Competitive Bid Loan and be entitled to receive payment thereof when due. No Lender shall be relieved of its obligation to fund a Competitive Bid Loan, and no Designated Bank shall assume such obligation, prior to the time the applicable Competitive Bid Loan is funded.

 

	(i) Each Competitive Bid Loan shall mature, and the principal amount thereof shall be due and payable, together with the accrued interest thereon, on the last day of the Interest Period applicable to such borrowing.

2.3 Letter of Credit Subfacility.

(a)  Issuance . Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which the Issuing Lender may reasonably require (so long as such terms and conditions do not impose any financial obligation on or require any Lien (not otherwise contemplated by this Credit Agreement) to be given by any Credit Party or conflict with any obligation of, or detract from any action which may be taken by, any Borrower or its Subsidiaries under this Credit Agreement), the Issuing Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.3, from time to time upon request to issue (from the Effective Date to the Revolving Loan Maturity Date and in a form reasonably acceptable to the Issuing Lender), in Dollars, and the LOC Participants shall participate in, Letters of Credit for the account of the Borrowers or any of their Subsidiaries; provided, however, that (i) the aggregate amount of LOC Obligations shall not at any time exceed the LOC Committed Amount, (ii) the sum of the aggregate amount of LOC Obligations outstanding plus Loans outstanding shall not exceed the Revolving Committed Amount and (iii) with respect to each individual LOC Participant, such LOC Participant’s pro rata share of outstanding Committed Loans plus its pro rata share of outstanding LOC Obligations shall not exceed such LOC Participant’s Commitment. The Issuing Lender may require the issuance and expiry date of each Letter of Credit to be a Business Day. Each Letter of Credit shall be either (x) a standby letter of credit issued to support the obligations (including pension or insurance obligations), contingent or otherwise, of a Borrower or any of its Subsidiaries, or (y) a commercial letter of credit in respect of the purchase of goods or services by a Borrower or any of its Subsidiaries in the ordinary course of business. Except as otherwise expressly agreed upon by all the LOC Participants, no Letter of Credit shall have an original expiry date more than one year from the date of issuance or shall have an expiry date that is less than 30 days prior to the Revolving Loan Maturity Date. Each Letter of Credit shall comply with the related LOC Documents. Each Letter of Credit shall be deemed to remain outstanding until it has expired or the original documents evidencing such Letter of Credit have been returned to the Issuing Lender. The Existing Letters of Credit shall be deemed to be Letters of Credit issued under this Credit Agreement. On the closing date of the Acquisition, the letters of credit issued by JPMorgan Chase Bank, N.A. for the benefit of Prentiss shall become and be deemed to be Letters of Credit issued under this Credit Agreement.

 

(b)  Notice and Reports . The request for the issuance of a Letter of Credit shall be submitted to the Issuing Lender at least three Business Days prior to the requested date of issuance. The Issuing Lender will, at least quarterly and more frequently upon request, provide to the Administrative Agent for dissemination to the Lenders a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of the prior report, and including therein, among other things, the account party, the beneficiary, the face amount, and the expiry date as well as any payments or expirations which may have occurred. The Issuing Lender will further provide to the Administrative Agent, promptly upon request, copies of the Letters of Credit and the other LOC Documents.

-28-

 

(c)  Participations.

 

		(i) Each LOC Participant acknowledges and confirms that it has a Participation Interest in the liability of the Issuing Lender under each Existing Letter of Credit in an amount equal to its Revolving Loan Commitment Percentage of such Existing Letters of Credit. The Borrowers’ reimbursement obligations in respect of each Existing Letter of Credit, and each LOC Participant’s obligations in connection therewith, shall be governed by the terms of this Credit Agreement.

 

		(ii) Each LOC Participant, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the Issuing Lender in such Letter of Credit and each LOC Document related thereto and the rights and obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Revolving Loan Commitment Percentage of the obligations under such Letter of Credit, and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the Issuing Lender therefor and discharge when due, its Revolving Loan Commitment Percentage of the obligations arising under such Letter of Credit. Without limiting the scope and nature of each LOC Participant’s participation in any Letter of Credit, to the extent that the Issuing Lender has not been reimbursed as required hereunder or with respect to any such Letter of Credit, each such LOC Participant shall pay to the Issuing Lender (without duplication of its obligations under Sections 2.3(d) and 2.3(e) to make a Revolving Loan to the Borrowers) its Revolving Loan Commitment Percentage of such unreimbursed drawing in same day funds on the day of notification by the Issuing Lender of an unreimbursed drawing pursuant to the provisions of subsection (d) or (e) of this Section 2.3. The obligation of each LOC Participant to so reimburse the Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrowers to reimburse the Issuing Lender in respect of any Letter of Credit, together with interest as hereinafter provided.

 

(d)  Reimbursement . In the event of any drawing under any Letter of Credit, the Issuing Lender will promptly notify the Borrowers. Unless the Borrowers shall promptly notify the Issuing Lender of their intent to otherwise reimburse the Issuing Lender, the Borrowers shall be deemed to have requested a Revolving Loan at a per annum rate equal to the Base Rate in the amount of such drawing, the proceeds of which will be used to satisfy the reimbursement obligations. The Borrowers shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit either with the proceeds of such Revolving Loan obtained hereunder or otherwise in same day funds as provided herein or in the LOC Documents. If the Borrowers shall fail to reimburse the Issuing Lender as provided hereinabove, the unreimbursed amount of such drawing shall bear interest at a per annum rate equal to the Base Rate plus two percent (2%). The Borrowers’ reimbursement obligations hereunder shall be absolute and unconditional under all circumstances irrespective of (but without waiver of) any rights of set-off, counterclaim or defense to payment the applicable account party or the Borrowers may claim or have against an Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including without limitation, any defense based on any failure of the applicable account party or the Borrowers to receive consideration or the legality, validity, regularity or unenforceability of such Letter of Credit. The Issuing Lender will promptly notify the LOC Participants of the amount of any unreimbursed drawing and each LOC Participant shall promptly pay to the Issuing Lender, in Dollars and in immediately available funds, the amount (without duplication of its obligations under Sections 2.3(d) and 2.3(e) to make a Revolving Loan to the Borrowers) of such LOC Participant’s Revolving Loan Commitment Percentage of such unreimbursed drawing. Such payment shall be made on the day such notice is received by such Lender from the Issuing Lender if such notice is received at or before 2:00 p.m., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day such notice is received. If such LOC Participant does not pay such amount to the Issuing Lender in full upon such request, such LOC Participant shall, on demand, pay to the Issuing Lender interest on the unpaid amount during the period from the date such LOC Participant received the notice regarding the unreimbursed drawing until such LOC Participant pays such amount to the Issuing Lender in full at a rate per annum equal to, if paid within two Business Days of the date of drawing, the Federal Funds Rate and thereafter at a rate per annum equal to the Base Rate. Each LOC Participant’s obligation to make such payment to the Issuing Lender, and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Credit

-29-

 

Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever. Simultaneously with the making of each such payment by a LOC Participant to the Issuing Lender, such LOC Participant shall, automatically and without any further action on the part of the Issuing Lender or such LOC Participant, acquire a participation in an amount equal to such payment (excluding the portion of such payment constituting interest owing to the Issuing Lender) in the related unreimbursed drawing portion of such LOC Obligation and in the interes