Exhibit 10.1


 


LIMITED
LIABILITY COMPANY AGREEMENT


OF


CENTERPOINT
JAMES FIELDING, LLC


A
DELAWARE LIMITED LIABILITY COMPANY


 


THIS LIMITED LIABILITY COMPANY AGREEMENT of
CenterPoint James Fielding, LLC (the “Company”), dated and effective as April
6, 2005, is adopted, executed and entered into by and between CenterPoint
Properties Trust, a Maryland real estate investment trust (“CenterPoint”), and
JF US Industrial Property Trust, a Maryland real estate investment trust (“JF
US” and, together with CenterPoint, the “Members”).


 


R
E C I T A L S:


 


A.                                   The Members desire to form a joint venture
for the purpose of acquiring, owning, operating, leasing, financing and selling
Company Property, as further described in this Agreement.


 


B.                                     On March 29, 2005 (the “Formation Date”), the
Company was formed pursuant to the Delaware Limited Liability Company Act,
Delaware Code, Title 6, Chapter 18 (as from time to time amended and including
any successor statute of similar import, the “Act”) by the filing of the
Certificate with the Secretary of State of the State of Delaware in accordance
with the Act.


 


NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein made and intending to be legally bound, the
Members hereby agree as follows:


 


ARTICLE I


DEFINITIONS


 


Section
1.1                                      Definitions.  As used in this Agreement, the
following terms have the following meanings:


 


“Act” means the Delaware Limited Liability Company
Act, Delaware Code Annotated, Title 6, Chapter 18, Sections 18-101 et seq., and
any successor statute, as amended from time to time.


 


“Affiliate” of any particular Person means any other
Person controlling, controlled by or under common control with such particular
Person, where “control” means the possession, directly or indirectly, of the
power to direct the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agreement” means this Limited Liability Company
Agreement, as executed and as amended, modified, supplemented or restated from
time to time, as the context requires.


 


“Annual Operating Budget” has the meaning set forth
in Section 6.8.


 


“Approved” or “Approval” means, with respect to any
matter considered or to be considered by the Board, the affirmative vote of a
Majority of the members of the Board.


 


“Assignee” has the meaning set forth in Section 9.4.


 


“Board” has the meaning set forth in Section 6.1.


 





















 


“Book Value” means, with respect to any Company
Property, the Company’s adjusted basis for federal income tax purposes,
adjusted from time to time to reflect the adjustments required or permitted by
Treasury Regulation Section 1.704-1(b)(2)(iv)(d)-(g) (provided that, in the
case of permitted adjustments, the Company chooses to make such adjustments);
provided, that the Book Value of any asset contributed to the Company shall be
equal to the Fair Market Value of the contributed asset on the date of
contribution.


 


“Business Day” means any day, other than Saturday,
Sunday or a day banks are authorized or required to be closed in Chicago, Illinois.


 


“Buy-Sell
Procedure” means the procedure set forth in Section 10.8.


 


“Capital Account” has the meaning set forth in
Section 4.1.


 


“Capital Call” has the meaning set forth in Section
3.4.


 


“Capital Contribution” means, with respect to any
Member, the contributions made by or on behalf of such Member to the Company
pursuant to Article III, which contributions shall be noted opposite such
Member’s name on Schedule 3.2, as the same may be amended from time to time, in
each case net of any liabilities assumed by the Company from such Member in
connection with such contribution and net of any liabilities to which assets
contributed by such Member in respect thereof are subject.


 


“Certificate” means the Certificate of Formation of
the Company as filed with the Secretary of State of the State of Delaware.


 


“CenterPoint” has the meaning set forth in the
Preamble to this Agreement.


 


“Code” means the Internal Revenue Code of 1986 and
any successor statute, as amended from time to time, in effect as of the date
hereof.  The Board may, in its sole
discretion, treat any amendment to the Code as having been in effect as of the
date hereof, provided that such amendment does not result in a material change
in the rights or obligations of any Member under this Agreement.


 


“Company” means the Delaware limited liability
company formed pursuant to the Certificate and this Agreement, as such limited
liability company may be constituted from time to time, and including its
successors.


 


“Company Minimum Gain” has the meaning set forth for
“partnership minimum gain” in Treasury Regulation Section 1.704-2(d).


 


“Company Property” means Real Estate used primarily
for industrial and ancillary purposes acquired or to be acquired by the Company
from CenterPoint or an Affiliate thereof pursuant to the Purchase Agreement or
the Right of First Offer Agreement or, upon the acquisition thereof, owned by
the Company.


 


“Confidential Information” means information that is
not generally known to the public and that is used, developed or obtained by
the Company or any of its Affiliates or subsidiaries in connection with their
respective businesses, including but not limited to (i) financial information
and projections, (ii) business strategies, (iii) products or services, (iv)
fees, costs and pricing structures, (v) designs, (vi) analysis, (vii) drawings,
photographs and reports, (viii) computer software, including operating systems,
applications and program listings, (ix) flow charts, manuals and documentation,
(x) data bases,


 


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(xi) accounting and business methods, (xii)
inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (xiii)
customers and clients and customer or client lists, (xiv) copyrightable works,
(xv) all technology and trade secrets and (xvi) all similar and related
information in whatever form.


 


“Credit Facility” means that certain secured
mortgage financing facility (including any related swap agreement) to be
entered into by and between the Company, or an affiliate thereof, and JP Morgan
Chase Bank, N.A., or an affiliate thereof, substantially in the form of the
Financing Proposal attached hereto as Exhibit 1.


 


“Default” means a breach of any material obligation,
duty or requirement of performance of a Member under this Agreement (other than
any breach of the terms and provisions of this Agreement caused by an act or
failure to act by such Member with respect to which such Member can establish that
(i) such act or failure to act was undertaken with due regard for the terms and
provisions of this Agreement, and (ii) in the reasonable good faith judgment of
such Member, such act or failure to act was not a violation of the terms and
provisions of this Agreement), but not including a Member Default.


 


“Defaulting Member” means a Member who is in Default
(not including a Member Default) under this Agreement and has not cured such
Default within a reasonable period of time.


 


“Distributable Cash” means, with respect to any
period of time, the sum of Net Operating Cash Flow and Net Capital Proceeds
received by the Company during such period of time.


 


“Distribution” means a distribution made by the
Company to a Member, whether in cash, property or securities and whether by
liquidating distribution or otherwise; provided that none of the following
shall be a Distribution: (a) any redemption or repurchase by the Company or any
Member of any Membership Interests, (b) any recapitalization or exchange of
securities of the Company, (c) any subdivision or any combination of any
outstanding Membership Interests, (d) any reasonable fees or remuneration paid
to any Member in such Member’s capacity as an Officer, consultant or other
provider of services to the Company, or (e) any fees paid to a Member pursuant
to the Management Agreement.


 


“Dollar” means a dollar in United States currency,
and the symbol “$” shall similarly designate dollars in United States currency.


 


“Economic Interest” means a Member’s share of the
Company’s Profits, Losses and Distributions pursuant to this Agreement and the
Act, but shall not include any right to participate in the management or
affairs of the Company, including the right to vote on, consent to or otherwise
participate in any decision of the Members, or any right to receive information
concerning the business and affairs of the Company, in each case to the extent
provided for herein or otherwise required by the Act.


 


“ERISA” has the meaning set forth in Section 3.2(C).


 


“Escrow Agent” means Chicago Title Insurance
Company, a Missouri corporation, or any other title insurance company
acceptable to the Members.


 


“Fair Market Value” means the fair market value of
the asset in question, as determined in the good faith judgment of the Board as
(A) in the case of any Company Property, the amount for which such Property
would be sold free of debt in an orderly arms’ length transaction, less the
amount of liabilities (including a proportionate share of any liabilities of
the Company secured by more than one Property or unsecured debt of the Company)
to which such Property is subject and the reasonably estimated transaction
costs of such a disposition, and (B) in the case of multiple Company Properties
or all


 


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Company Properties, the sum of the amounts for which
each such Property would be sold free of debt in an orderly arms’ length
transaction, less the amount of liabilities (including a proportionate share of
any liabilities of the Company secured by more than one Property or unsecured
debt of the Company) to which such Properties are subject and the reasonably
estimated transaction costs of such a disposition, and (C) in the case of a
Membership Interest, the amount which would be distributable to the Members if
the assets of the Company were sold at the values determined in (B), and such
proceeds were then distributed in accordance with Section 5.2; provided,
however, that in all cases transaction costs shall be taken into account only
if and to the extent actual transaction costs are incurred in connection with
the transaction giving rise to the necessity to determine Fair Market
Value.  In making its good faith
determination, the Board shall give due regard to the value implied by any
transaction giving rise to the need for a determination of Fair Market Value
and, in the case of the valuation of a Membership Interest, shall not take into
account any discount for minority interest or lack of marketability.


 


“Fiscal Year” means the fiscal year of the Company,
which shall be the period beginning on July 1st of a given year and ending on
June 30th of the next year (or part thereof, in the case of the Company’s first
or last Fiscal Year).  Each Fiscal Year
shall commence on the day immediately following the last day of the immediately
preceding Fiscal Year.


 


“Flow Through Entity” has the meaning set forth in
Section 3.2.


 


“Formation Date” means the date the Certificate was
filed with the Secretary of State of the State of Delaware.


 


“GAAP” means generally accepted accounting
principles, consistently applied, as in effect in the United States, in the
determination of the Company’s auditor.


 


“Gross Revenues” means, with respect to a Company
Property, the total income produced by such Company Property.


 


“Indebtedness” means all indebtedness for borrowed
money (including purchase money obligations), all indebtedness under revolving
credit arrangements, all capitalized lease obligations and all guarantees of
any of the foregoing.


 


“Indemnifying Member” has the meaning set forth in
Section 11.3.


 


“Industrial Property” means Real Estate used
primarily for industrial and ancillary purposes, including, without limitation,
for warehouse, distribution, transportation, manufacturing and assembly
functions.


 


“Investment” as applied to any Person means (i) any
direct or indirect purchase or other acquisition by such Person of any notes,
obligations, instruments, stock, securities or ownership interest (including
partnership interests, limited liability company interests and joint venture
interests) of any other Person and (ii) any capital contribution by such Person
to any other Person.


 


“Investment Company Act” means the Investment
Company Act of 1940, 15 U.S.C. Sections 80a-1 through 80a-52, as amended from
time to time.


 


“James Fielding” means James Fielding Funds
Management Limited, an Australian company.


 


“JFFM” means JFFM US Real Estate, Inc., a Delaware
corporation.


 


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“JF US” has the meaning set forth in the Preamble to
this Agreement.


 


“JF US Inc.” means JF US Industrial Property Trust,
Inc., a Delaware corporation.


 


“JF US Industrial” means JF US Industrial Trust, an
Australian listed property trust.


 


“JF US Change of Control” means a direct or indirect
change of control, which shall be deemed to occur if any Person (either alone
or together with its Affiliates) becomes the beneficial owner of or controls
greater than twenty percent (20%) of the voting securities of JF US Industrial,
or of Mirvac, or any circumstance by which James Fielding is removed as the
responsible entity or manager of JF US Industrial Trust, or upon the first
public announcement of a proposed transaction that, if consummated, would
result in James Fielding ceasing to be or being removed as the responsible
entity or manager of JF US Industrial.


 


“JF US Territory” means the Chicago Consolidated
Metropolitan Statistical Area (CMSA) which comprises the Chicago Primary
Metropolitan Statistical Area (PMSA) (each statistical areas compiled by the
United States Office of Management and Budget of the Executive Office of the President) consisting of nine counties
in northeastern Illinois (Cook, DuPage, Kane, Lake, McHenry, Will, Grundy,
Kendall and De Kalb) plus two additional counties (Lake county in northwestern
Indiana and Kenosha county in southeastern Wisconsin).


 


“Leasing Guidelines” has the meaning set forth in
Section 6.8.


 


“Losses” means items of Company loss and deduction
determined according to Section 4.2.


 


“Majority” means, with respect to the Board, a
majority of the members of the Board designated by Members (other than Members
who, at the time in question, have committed an uncured Member Default);
provided, however, that


 


(A)                              for so long as JF US is not a Member who has
committed an uncured Member Default:


 


(i)                                     the vote of at least two (2) members of the
Board designated by JF US shall be required to constitute a Majority; and


 


(ii)                                  for purposes of Approval over matters
described in Section 6.3(B)(i), (ii), (iii), (v), (vi), (vii), (xiii), (xxi)
and (xxvii), any one of the members of the Board designated by JF US shall have
the right to cast an additional deciding vote in the event of a tie;


 


(B)                                such right shall not be exercised in a manner
that will cause or result in a dissolution of the Company pursuant to Article X
hereof;


 


(C)                                JF US’s right to cast an additional deciding
vote in the case of a matter described in:


 


(i)                                     Section 6.3(B)(ii), to the extent such
subsection concerns the purchase or acquisition of Industrial Property, shall
be limited for avoidance of doubt to Property which the Company may acquire
pursuant to the Purchase Agreement or the Right of First Offer Agreement, and
any other acquisition of Industrial Property by the Company


 


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shall require Approval of the Board without JF US having a right to
cast an additional vote;


 


(ii)                                  Section 6.3(B)(vii) shall be only with
respect to the Credit Facility,


 


(iii)                               Section 6.3(B)(xiii) shall not be interpreted
to imply that JF US has any right to pledge, or otherwise permit the pledging
of, its Membership Interest in the Company,


 


(iv)                              Section 6.3(B)(xxi) shall not be interpreted
to imply that JF US has any right to (a) affect the non-recourse
provisions of the Credit Facility, (b) cause CenterPoint to have any
liability under the Credit Facility or (c) make or permit any changes to
the release provisions thereunder;


 


(v)                                 Section 6.3(B)(xxvii) shall not be
interpreted to imply that CenterPoint may be terminated as the manager under
the Management Agreement by reason of such subsection (xxvii); and


 


(D)                               provided, further, JF US’s right to cast an
additional deciding vote in the case of any matter shall be suspended during
any period in which JF US has committed an uncured Member Default and during
any period in which the sale procedures described in Sections 9.12, 9.13 or
10.2 are being undertaken.


 


“Management Agreement” means a Management Agreement
(or where the context so requires, Management Agreements) to be executed as of
the Tranche I Closing Date (as defined in Section 3.6) or thereafter, as the
case may be, between the Company or a wholly-owned Subsidiary of the Company,
on the one hand, and CenterPoint, on the other hand, in the form attached
hereto as Exhibit 2, pursuant to which CenterPoint shall manage the Company
Property.


 


“Master Lease Agreement” means each Master Lease
Agreement (or where the context so requires, all outstanding Master Lease
Agreements), dated as of the date each Company Property having vacancy is
acquired by the Company, between the Company and CenterPoint, in the form
attached hereto as Exhibit 3, pursuant to which CenterPoint shall lease vacant
portions of the Company Property.


 


“Material Lease” means a lease of all or a portion
of a Company Property for which: (i) the net present value of all rental
payments under such lease exceeds $500,000, or (ii) the premises demised
thereby exceeds 50,000 square feet in size.


 


“Member” means each Person identified on Schedule
3.2 hereto as of the date hereof who has executed this Agreement or a
counterpart hereof and each Person who is hereafter admitted as a Member in
accordance with the terms of this Agreement and the Act.  The Members shall constitute the “members”
(as that term is defined in the Act) of the Company.  Except as expressly provided herein, the
Members shall constitute a single class or group of members of the Company for
all purposes of the Act and this Agreement.


 


“Member Commitment” means, with respect to each
Member, the amount that is set forth opposite such Member’s name on Schedule
3.2 attached hereto which represents the amount of the aggregate capital to be
contributed by such Member to the Company to fund the acquisition of Company
Property pursuant to the Purchase Agreement (subject to adjustment, in
proportion to the Sharing Percentages of the Members, to the extent that the
purchase price in the Purchase Agreement is adjusted)


 


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and to fund acquisition costs, transaction expenses,
organizational and similar expenditures or any other expenses for which such
Capital Contributions may properly be used, as contemplated by Section 3.4.


 


“Member Default” has the meaning set forth in
Section 3.6(B).


 


“Membership Interest” means a Member’s interest in
the Company, including the Member’s right to share in Distributions, Profits
and Losses of the Company in accordance with the Member’s Sharing Percentage
(or as otherwise provided herein), and further including the Member’s right, if
any, to participate in the management of the business and affairs of the
Company, including the right, if any, to vote on, consent to, or otherwise
participate in, any decision or action of or by the Members and the right to
receive information concerning the business and affairs of the Company, in each
case to the extent expressly provided in this Agreement or otherwise required
by the Act.


 


“Mirvac” means Mirvac Limited (ABN 92 003 280 699)
and Mirvac Property Trust (ABN 29 769 181 534), a stapled security listed on
the Australian Stock Exchange.


 


“Net Capital Proceeds” means, with respect to any
Company Property, the gross proceeds, if any, realized by the Company from the
sale, financing, refinancing or other disposition of such Company Property or
any interest therein, net of the actual costs and expenses incurred by the
Company in connection with the transaction giving rise to such proceeds,
including repayment of any indebtedness secured by such Company Property.


 


“Net Operating Cash Flow” means, for any period, (i)
all cash revenues, interest, rents and other payments received by the Company
during such period (excluding Capital Contributions and Net Capital Proceeds)
less (ii) all debt service payments and cash expenses paid by the Company
during such period, including any fees paid under the Management Agreement, and
all additions to reserves contemplated in one or more approved Annual Operating
Budgets.


 


“Non-Defaulting Member” means a Member who is not in
Default during such period of time when another Member is in Default.


 


“Offer Period” shall have the meaning set forth in
Section 6.10.


 


“Offered Property” shall have the meaning set forth
in Section 6.10.


 


“Officer” means each Person designated as an officer
of the Company pursuant to Article VI for so long as such Person remains an
officer pursuant to the provisions of Article VI.


 


“Performance Return” means the amount, if any,
distributable as described in Section 5.2(B) of this Agreement for any Fiscal
Year.


 


“Person” means a natural person, partnership
(whether general or limited), limited liability company, trust, estate,
association, corporation, custodian, nominee or any other individual or entity
in its own or any representative capacity.


 


“Plan Asset Regulations” has the meaning set forth
in Section 3.2(C).


 


“Proceeding” has the meaning set forth in Section
7.4.


 


“Profits” means items of Company income and gain
determined according to Section 4.2.


 


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“Property” or “Properties” means Company Property.


 


“Purchase Agreement” means that certain Sale
Agreement, or collectively those certain Sale Agreements, between CenterPoint
or certain of its Affiliates, as the case may be, on the one hand, and the
Company, on the other hand, dated of even date herewith, in the form attached
hereto as Exhibit 4, pursuant to which the Company has agreed to purchase, and
CenterPoint or certain of its Affiliates has agreed to sell, certain Industrial
Property located primarily in the JF US Territory.


 


“Qualifying Bank” means a bank or trust company that
is (i) organized as a banking association or corporation under the laws of the
United States or any State thereof, or in the District of Columbia, (ii)
subject to supervision or examination by federal, state or District of Columbia
banking authorities, (iii) with capital and surplus of not less than
$250,000,000, and (iv) the debt securities of which are rated at least “A” by
Moody’s Investors Services, Inc. or “A2” by Standard & Poor’s Ratings
Group.


 


“Real Estate” means a parcel or parcels of land,
together with all buildings, structures, improvements and fixtures located
thereon, and all easements and other rights and interests appurtenant thereto.


 


“REIT” means a U.S. corporate or trust entity which
satisfies the qualifications for taxation as a real estate investment trust for
U.S. federal income tax purpose under Sections 856-859 of the Code and Treasury
Regulations promulgated thereunder.


 


“Right of First Offer Agreement” means that certain
Right of First Offer Agreement dated as of the date hereof, between the Company
and CenterPoint, in the form attached hereto as Exhibit 5.


 


“Sales Event” has the meaning set forth in Section
9.11.


 


“Sale Notice” shall have the meaning set forth in
Section 6.10.


 


“Securities Act” means the Securities Act of 1933,
as amended from time to time.


 


“Sharing Percentage” means, with respect to each
Member, as of any date, the fraction, expressed as a percentage, the numerator
of which is the aggregate Capital Contributions made by such Member and the
denominator of which is the aggregate Capital Contributions made by all of the
Members.


 


“Short Term Investments” means U.S. Dollar
denominated, readily available instruments consisting of one or more of:


 


(A)                              interest bearing transaction accounts in a
Qualifying Bank (including, without limitation, money market accounts);


 


(B)                                time deposits, or certificates of deposit, in
a Qualifying Bank, in each case having a maturity of one year or less;


 


(C)                                securities that, at the date of investment,
are direct obligations of, or obligations fully guaranteed or insured by, the
United States or any agency or instrumentality of the United States having a
maturity of not more than one year from the date of purchase;


 


(D)                               such other short-term, liquid investments
having a maturity of three months or less rated at least “A” by Moody’s
Investor’s Services, Inc. or “A2” by Standard & Poor’s Ratings Group; and


 


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(E)                                 money market mutual funds with assets of at
least $500,000,000, substantially all of which assets consist of obligations of
the type included in clauses (A) through (D) above.


 


“Similar Business Arrangement” means any agreement,
arrangement or understanding between CenterPoint and any Person other than JF
US or an Affiliate of JF US which is comparable to the agreement, arrangement
or understanding set forth hereunder, whereby CenterPoint agrees or intends to
sell or manage Industrial Property; provided, however, any Property first
offered to the Company and not acquired by the Company pursuant to the terms of
the Right of First Offer Agreement shall not be considered for the purpose of
determining Similar Business Agreement.


 


“Subsidiary” means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the membership, partnership or other similar
ownership interest thereof or the power to elect a majority of the members or
the governing body thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof.  For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director, general partner
or managing member of such limited liability company, partnership, association
or other business entity.


 


“Tax Matters Partner” has the meaning set forth in
Section 8.2.


 


“Taxable Year” means the Company’s taxable year
ending on the last day of each calendar year (or part thereof, in the case of
the Company’s last taxable year), or such other year as is (i) required by
Section 706 of the Code or (ii) determined by the Board.


 


“Termination Date” means the date which is the third
year anniversary of the date on which the Company last acquires a Property
under the Purchase Agreement.


 


“Transfer” means any sale, assignment, pledge,
hypothecation or other disposition of a Membership Interest, Economic Interest
or Company Property.


 


“Transferred Interest” means the portion of a
Membership Interest which a Transferring Member elects to transfer pursuant to
Article IX.


 


“Transferring Member” means a Member that elects to
transfer all or any portion of its Membership Interest pursuant to Article IX.


 


“Treasury Regulations” means the federal income tax
regulations, including any temporary or proposed regulations, promulgated under
the Code, in effect as of the date hereof. 
The Board may, in its sole discretion, treat any amendment to such
Treasury Regulations as having been in effect as of the date hereof, provided
that such amendment does not result in a material change in the rights or
obligations of any Member under this Agreement.


 


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“Valuation Procedure” means the procedure to be followed to resolve any
dispute between the Members with respect to the Fair Market Value of any
Property of the Company or of any Membership Interest in the Company.  The Valuation Procedure is set forth is
Section 10.8.


 


“Wildman” has the meaning set forth in Section
11.24.


 


Section
1.2                                      Construction. 
Whenever the context requires, the gender of all words used in this
Agreement includes the masculine, feminine and neuter, and the singular number
includes the plural number and vice versa. 
All references to Articles and Sections refer to articles and sections
of this Agreement, and all references to Schedules are to Schedules attached
hereto, each of which is made a part hereof for all purposes.  References to Exhibits are to the Exhibits
attached hereto, but such Exhibits are not incorporated in their entirety in
this Agreement.


 


Section
1.3                                      Including.  Reference in this Agreement to
“including,” “includes” and “include” shall be deemed to be followed by “without
limitation.”


 


ARTICLE II


ORGANIZATION


 


Section
2.1                                      Formation.  The Company has been organized
as a Delaware limited liability company on the Formation Date by the execution
and filing of the Certificate under and pursuant to the Act and shall be
continued in accordance with the terms of this Agreement.  The rights, powers, duties, obligations and
liabilities of the Members shall be determined pursuant to the Act and this
Agreement.  To the extent that the
rights, powers, duties, obligations and liabilities of the Members are
different by any provision of this Agreement than they would be in the absence
of such provision, this Agreement shall, to the extent permitted by the Act,
control.


 


Section
2.2                                      Company Name.  The
name of the Company shall be “CenterPoint James Fielding, LLC” and all Company
business shall be conducted in that name or such other names that comply with
applicable law as the Board may select from time to time.  Notification of any change in the name of the
Company shall be given to all Members. 
The Company’s business may be conducted under its name and/or any other
name or names deemed advisable by the Board.


 


Section
2.3                                      Certificate of Formation, Etc.  The
Certificate was filed with the Secretary of State of the State of Delaware on
the Formation Date.  The Members hereby
agree to execute, file and record all such other certificates and documents, including
amendments to the Certificate, and to do such other acts as may be appropriate
to comply with all requirements for the formation, continuation and operation
of a limited liability company, the ownership of property, and the conduct of
business under the laws of the State of Delaware and any other jurisdiction in
which the Company may own property or conduct business.


 


Section
2.4                                      Term of the Company.  The
term of the Company commenced on the Formation Date and shall continue until
the termination and dissolution of the Company as determined under Section 10.1
of this Agreement.  During the six (6)
month period which ends on the Termination Date (if this Agreement has not
otherwise been terminated), the Members intend to enter into negotiations for an
extension of this Agreement upon terms and conditions mutually acceptable to
both Members; provided that, no Member shall be required to enter into or
permit any extension of the term of this Agreement, and the failure to extend
the term of this Agreement shall not be deemed to be a Default by any Member.


 


Section
2.5                                      Registered Office; Registered Agent;
Principal Office; Other Offices.  The registered office of the Company required
by the Act to be maintained in the State of Delaware shall be


 


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the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the Company) as the Board may designate from time to time in the manner
provided by law.  The registered agent of
the Company in the State of Delaware shall be the initial registered agent
named in the Certificate or such other Person or Persons as the Board may
designate from time to time in the manner provided by law.  The principal office of the Company shall be
at such place as the Board may designate from time to time, which need not be
in the State of Delaware, and the Company shall maintain records there.  The Company may have such other offices as
the Board may designate from time to time.


 


Section
2.6                                      Purposes.  The nature of the business or
purposes to be conducted or promoted by the Company is solely to acquire, own,
operate, lease, finance and sell Company Property.  The Company may engage in any and all
activities necessary, desirable or incidental to the accomplishment of the
foregoing.  Notwithstanding anything
herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the laws
of the State of Delaware.  The Company
shall manage its affairs in a manner such that the assets and income of the
Company will satisfy the asset and income tests for REIT qualification under
the Code to enable the Members to maintain their status as qualified REITs for
United States federal income tax purposes.


 


Section
2.7                                      Powers of the Company. 
Subject to the provisions of this Agreement, the Company shall have the
power and authority to take any and all actions necessary, appropriate, proper,
advisable, convenient or incidental to or for the furtherance of the purposes
set forth in Section 2.6, including, without limitation, the power either
directly or through one or more Subsidiaries or Affiliates:


 


(A)                              to conduct its business, carry on its
operations and have and exercise the powers granted to a limited liability
company by the Act in any state or district of the United States;


 


(B)                                to acquire by purchase, lease, contribution
of property or otherwise, rehabilitate, own, hold, operate, maintain, finance,
refinance, improve, lease, sell, convey, mortgage, transfer, demolish or
dispose of any real or personal property that may be necessary, convenient or
incidental to the accomplishment of the purposes of the Company;


 


(C)                                to enter into, perform and carry out
contracts of any kind, including contracts with any Member or any Affiliate
thereof or any agent of the Company necessary to, in connection with,
convenient to or incidental to the accomplishment of the purposes of the
Company, including agreements for the management of the affairs of the Company;


 


(D)                               to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with, shares or
other interests in or obligations of domestic corporations, associations,
general or limited partnerships (including the power to be admitted as a
partner thereof and to exercise the rights and perform the duties created
thereby), trusts, limited liability companies (including the power to be
admitted as a member or appointed as a manager thereof and to exercise the
rights and to perform the duties created thereby) or individuals or direct or
indirect obligations of the United States or any State, governmental district
or municipality or of any instrumentality of any of them;


 


(E)                                 to lend money for any proper purpose, to
invest and reinvest its funds and to take and hold real and personal property
for the payment of funds so loaned or invested;


 


11





















 


(F)                                 to sue and be sued, complain and defend, and
participate in administrative or other proceedings, in its name;


 


(G)                                to appoint agents of the Company and define
their duties and fix their compensation;


 


(H)                               to indemnify any Person in accordance with
the Act and to obtain any and all types of insurance;


 


(I)                                    to cease its activities and cancel its
Certificate;


 


(J)                                   to negotiate, enter into, renegotiate,
extend, renew, terminate, modify, amend, waive, execute, acknowledge or take
any other action with respect to any lease, contract or security agreement in
respect of any assets of the Company;


 


(K)                               to borrow money and issue evidences of
indebtedness and guaranty indebtedness and to secure the same by a mortgage,
pledge or other lien on the assets of the Company;


 


(L)                                 to pay, collect, compromise, litigate,
arbitrate or otherwise adjust or settle any and all other claims or demands of
or against the Company or to hold such proceeds against the payment of
contingent liabilities; and


 


(M)                            to make, execute, acknowledge and file any
and all documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.


 


Section
2.8                                      Board Authority. 
Subject to the provisions of this Agreement, (i) the Company may, upon
the direction of the Board, enter into and perform under any and all documents,
agreements and instruments contemplated thereby, all without any further act,
vote or approval of any Member, and (ii) the Board may authorize any Person
(including any Member or Officer) to enter into and perform any and all
documents, agreements and instruments on behalf of the Company.  Each Person so authorized by the Board,
whether pursuant to this Agreement or subsequent action of the Board, shall be
deemed a “manager” for purposes of the Act.


 


Section
2.9                                      Foreign Qualification. 
Prior to the Company’s conducting business in any jurisdiction other
than Delaware, the Board shall cause the Company to comply with all
requirements necessary to qualify the Company as a foreign limited liability
company in that jurisdiction.  At the
request of the Board or any Officer, each Member shall execute, acknowledge, swear
to and deliver any or all certificates and other instruments conforming with
this Agreement that are necessary or appropriate to qualify, continue or
terminate the Company as a foreign limited liability company in all such
jurisdictions in which the Company may conduct business.


 


Section
2.10                                No State-Law Partnership.  The
Members intend that the Company shall not be a partnership (including a general
or limited partnership) or joint venture, and that no Member shall be a partner
or joint venturer of any other Member by virtue of this Agreement, for any
purposes other than federal and, if applicable, state tax purposes, and neither
this Agreement nor any other document entered into by the Company or any Member
shall be construed to suggest otherwise. 
The Members intend that the Company shall be treated as a partnership
for federal and, if applicable, state income tax purposes, and each Member and
the Company shall file all tax returns and shall otherwise take all tax and
financial reporting positions in a manner consistent with such treatment.


 


12





















 


ARTICLE III


MEMBERSHIP
AND CAPITAL CONTRIBUTIONS


 


Section
3.1                                      Membership Interests. 
There shall be one class of Membership Interest, and the rights and
obligations of the Members shall be as provided in this Agreement and, to the
extent not provided in this Agreement, the Act. 
The Board may in its discretion cause the Company to issue certificates
to the Members representing the Membership Interests held by such Member.


 


Section
3.2                                      Members.


 


(A)                              Names, etc. 
The names, residence, business or mailing addresses, Member Commitments
and Capital Contributions of each Member are set forth on Schedule 3.2.  Any reference in this Agreement to Schedule
3.2 shall be deemed to be a reference to Schedule 3.2 as amended and in effect
from time to time in accordance with the terms of this Agreement.  Each Person listed on Schedule 3.2 shall,
upon his, her or its execution of this Agreement or counterpart thereto, be
admitted to the Company as a Member of the Company.


 


(B)                                Loans by Members.  No Member, as such, shall be required to lend
any funds to the Company or to make any contribution of capital to the Company,
except as otherwise required by applicable law, this Agreement or any other
written agreement between such Member and the Company explicitly requiring the
making of loans or capital contributions. 
Any Member may, with the Approval of the Board, make additional Capital
Contributions or loans to the Company, and any loan by a Member to the Company
shall not be considered to be a Capital Contribution.  Such loans shall be on commercially
reasonable terms agreed to by the Board.


 


(C)                                Representations and Warranties of
Members.  Each Member hereby represents
and warrants to the Company and acknowledges that:


 


(i)                                     such Member has knowledge and experience in
financial and business matters and is capable of evaluating the merits and
risks of an investment in the Company and making an informed investment
decision with respect thereto;


 


(ii)                                  such Member has reviewed and evaluated all
information necessary to assess the merits and risks of his, her or its
investment in the Company and has had answered to its satisfaction any and all
questions regarding such information;


 


(iii)                               such Member is able to bear the economic and financial
risk of an investment in the Company for an indefinite period of time;


 


(iv)                              such Member is acquiring Membership Interests
in the Company for investment only and not with a view to, or for resale in
connection with, any distribution to the public or public offering thereof;


 


(v)                                 the Membership Interests in the Company have
not been registered under the securities laws of any jurisdiction and cannot be
disposed of unless they are subsequently registered and/or qualified under
applicable securities laws and the provisions of this Agreement have been
complied with;


 


(vi)                              the execution, delivery and performance of
this Agreement have been duly authorized by such Member, do not and are not
expected to require such Member to obtain any consent or approval that has not
been obtained, and do not and are not


 


13





















 


expected to contravene or result in a default under any provision of
any law or regulation applicable to such Member or other governing documents or
any agreement or instrument to which such Member is a party or by which such
Member is bound, and the Person executing this Agreement on behalf of such
Member has been duly authorized to do so;


 


(vii)                           the determination of such Member to invest in
the Company has been made by such Member independent of any other Member and
independent of any statements or opinions as to the advisability of such
purchase or as to the properties, business, prospects or condition (financial
or otherwise) of the Company and its subsidiaries which may have been made or
given by any other Member or by any Affiliate or agent of any other Member;


 


(viii)                        this Agreement is valid, binding and
enforceable against such Member in accordance with its terms;


 


(ix)                                if a Member is a partnership, limited
liability company or other entity classified as a partnership for federal
income tax purposes, or a grantor trust (within the meaning of Sections 671-679
of the Code) or an S corporation (within the meaning of Section 1361 of the
Code) (each, a “Flow Through Entity”), that either: (a) no Person will own,
directly or indirectly through one or more flow-through entities, an interest
in such Member where more than seventy percent (70%) of the value of the Person’s
interest in such Member is attributable to such Member’s investment in the
Company; or (b) if one or more Persons will own, directly or indirectly through
one or more Flow Through Entities, an interest in such Member where more than
seventy percent (70%) of the value of the Person’s interest in such Member is
attributable to the Member’s investment in the Company, neither the Member nor
any such Person has or will have any intent or purpose of having such Person
invest in the Company indirectly through a Member in order to enable the
Company to satisfy the 100-Member limitation in Treas. Reg. Section 1.7704-1(h)
(the private placement safe harbor from publicly traded status);


 


(x)                                   unless such Member has notified the Board to
the contrary, that such Member is a United States Person within the meaning of
Section 7701 of the Code (i.e., is not any of the following (as defined in the
Code): a nonresident alien individual, foreign partnership, foreign
corporation, foreign estate, foreign trust, other foreign entity or
organization, or grantor trust having a foreign person as an owner), shall
notify the Company within sixty (60) days of the date such Member ceases to be
a United States Person and may be asked to recertify its non-foreign status at
periodic intervals (and that this information may be disclosed to the Internal
Revenue Service);


 


(xi)                                if such Member will beneficially own ten
percent (10%) or more of the Membership Interests in the Company, the Member is
not an “investment company” as defined in the Investment Company Act nor is the
Member itself relying on Section 3(c)(1) or Section 3(c)(7) of the Investment
Company Act as an exemption from classification as an “investment company”; and


 


(xii)                             such Member is not holding and, for the term
of the Company, will not hold “plan assets,” as that term is defined in the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or the
rules and regulations promulgated thereunder, including, without limitation,
the Department of Labor Regulations Section 2510.3-101 (the “Plan Asset Regulations”),
and, consequently, the administration and


 


14





















 


management of the Company and the investment of the Company’s assets
are not, and will not be, subject to the fiduciary duty requirements of ERISA.


 


(D)                               Representations and Warranties of JF US.  JF US hereby represents and warrants to the
Company and acknowledges that:


 


(i)                                     JF US is owned (except for 100-plus REIT
qualifying shares) by JF US Inc., which in turn is owned (except for 100-plus
REIT qualifying shares) by JF US Industrial;


 


(ii)                                  JF US Industrial is managed by James
Fielding, which is a wholly-owned Subsidiary of Mirvac; and


 


(iii)                               JFFM is a wholly-owned Subsidiary of James
Fielding.


 


(E)                                 Legal Opinions.  Contemporaneously with the execution of this
Agreement and as a condition of such execution, each Member shall provide to
the Company and to the other Member an opinion of its independent legal counsel
in the form attached hereto as Exhibit 6.


 


Section
3.3                                      No Liability of Members.


 


(A)                              No Liability. 
Except as otherwise provided by applicable law, no Member shall have any
personal liability whatsoever in such Member’s capacity as a Member, whether to
the Company, to any of the other Members, to the creditors of the Company or to
any other third party, for the debts, liabilities, commitments or any other
obligations of the Company or for any losses of the Company.  Each Member shall be liable only to make such
Member’s Capital Contributions to the Company pursuant to its Member Commitment
as required in this Agreement and any such other payments to the extent
expressly required by this Agreement.


 


(B)                                Distributions.  In accordance with the Act and the laws of
the State of Delaware, a member of a limited liability company may, under
certain circumstances, be required to return amounts previously distributed to
such member.  It is the intent of the
Members that no distribution to any Member pursuant to Article V hereof shall
be deemed a return of money or other property paid or distributed in violation
of the Act.  The payment of any such
money or distribution of any such property to a Member shall be deemed to be a
compromise within the meaning of the Act, and the Member receiving any such
money or property shall not be required to return to any Person any such money
or property.  However, if any court of
competent jurisdiction holds that, notwithstanding the provisions of this
Agreement, any Member is obligated to make any such payment, such obligation
shall be the obligation of such Member and not of any other Member.


 


Section
3.4                                      Capital Contributions to Fund Obligations
under Purchase Agreement.


 


(A)                              Pursuant to the Purchase Agreement, the
Company has agreed to purchase, and CenterPoint and certain of its Affiliates
have agreed to sell, certain Industrial Property located primarily in the JF US
Territory, in four tranches as more particularly set forth in the Purchase
Agreement.  The Member Commitment of each
Member shall be its pro rata share, determined in proportion to its Sharing
Percentage, of the purchase price of the Property to be acquired pursuant to
the Purchase Agreement (subject to adjustment, in proportion to the Sharing
Percentages of the Members, to the extent that the purchase price in the
Purchase Agreement is adjusted) and to fund all applicable acquisition costs,
transaction expenses, organizational and similar expenditures or


 


15





















 


any other expenses for which such Capital Contributions may properly be
used, as set forth on Schedule 3.2.  Each
Member, by execution of this Agreement, agrees to make Capital Contributions up
to the amount of its Member Commitment in accordance with the terms of this
Agreement.  Notwithstanding anything in
this Agreement to the contrary, all fees and expenses (other than interest
expense) incurred in connection with the Credit Facility (or any other
Indebtedness) shall be borne directly by JF US, which shall pay all such
amounts directly to the lender(s) thereunder without reimbursement from the
Company and without credit for a Capital Contribution to the Company for such
amounts.


 


(B)                                The Company, upon Approval of the Board,
shall call Capital Contributions from the Members (each a “Capital Call”) to
fund the Member Commitments as necessary to fund the Company’s obligations
under the Purchase Agreement and related acquisition costs.  With respect to each such Capital Call, the
Members shall make Capital Contributions in cash to the Company equal to the
aggregate amount of such Capital Call, pro rated based upon their relative
Member Commitments.  All Capital Calls
shall be paid in Dollars within five (5) Business Days following receipt of
written notice therefor.  Any and all
amounts that are called by the Board and that are not immediately applied for
the purpose called shall be (i) returned to the funding Members or (ii)
invested by the Board in the name of the Company in Short Term Investments
until such time as they are applied for the purpose called.


 


Section
3.5                                      Additional Capital Contributions.


 


(A)                              Pursuant to the Right of First Offer
Agreement, the Company has the right to purchase from CenterPoint and certain
of its Affiliates Industrial Property located primarily in the JF US Territory,
upon the terms and conditions set forth in the Right of First Offer
Agreement.  During the three year term of
this Agreement, (i) CenterPoint shall contribute as Capital Contributions five
percent (5%) of the purchase price of such Company Property (including
acquisition costs and net of liabilities) which may be purchased by the
Company, and CenterPoint shall maintain its Sharing Percentage at five percent
(5%) by reason of such Capital Contribution, and (ii) JF US shall contribute as
Capital Contributions ninety-five percent (95%) of the purchase price of such
Company Property (including acquisition costs and net of liabilities) which may
be purchased by the Company, and JF US shall maintain its Sharing Percentage at
ninety-five percent (95%) by reason of such Capital Contributions.


 


(B)                                The Company, upon Approval of the Board to
acquire any Company Property under the Right of First Offer Agreement, shall
make Capital Calls to fund the Company’s obligations under the Right of First
Offer Agreement and related acquisition costs. 
All Capital Calls shall be paid in Dollars within five (5) Business Days
following receipt of written notice therefor. 
Any and all amounts that are called by the Board and that are not
immediately applied for the purpose called shall be (i) returned to the funding
Members or (ii) invested by the Board in the name of the Company in Short Term
Investments until such time as they are applied for the purpose called.


 


Section
3.6                                      Security for Member Defaults with Respect to
the Purchase Agreement.  As described herein, the Company concurrently
herewith has entered into the Purchase Agreement, consisting of multiple
contracts with CenterPoint and certain of its Affiliates, providing in general
for the acquisition by the Company of Property from CenterPoint and certain of
its Affiliates on four (4) dates in May, July and October 2005 and February
2006.  The four (4) groups of Property to
be purchased on such four (4) dates are referred to herein as “Tranches”, and “Tranche
I”, “Tranche II”, “Tranche III” and “Tranche IV” shall refer, in chronological
order, to each of the four (4) groups of Property to be acquired by the Company
in May, July and October 2005 and February 2006, and which dates shall be
referred to


 


16





















 


herein as the “Tranche I Closing Date”, “Tranche II
Closing Date”, “Tranche III Closing Date” and “Tranche IV Closing Date”,
respectively.  The parties to the
Purchase Agreement have provided security for the performance of their
obligations to purchase and sell the Property to be sold in Tranche I.  This Section 3.6 provides for the provision
of security for the performance of the obligations of the Company and
CenterPoint or any of its Affiliates, as applicable, with respect to Tranche
II, Tranche III and Tranche IV.  This
Section 3.6 shall have no application, force or effect with respect to any
failure of performance with respect to Tranche I, nor shall this Section 3.6
have any application, force or effect in the event that Tranche I is not
consummated.


 


(A)                              On the date of the closing of Tranche I (or
on the earliest date of closing of any Tranche I Properties, in the event at
least one (1) Tranche I Property is to be acquired on a later date as a result
of a Substitution Event (as defined in the Purchase Agreement)), or at such
other time as may be agreed to by the parties:


 


(i)                                     JF US or an Affiliate thereof shall provide
security to CenterPoint and its Affiliates for the Company’s performance of
Tranche II, Tranche III and Tranche IV, in the form of an irrevocable and
unconditional standby letter of credit in the amount of $15 million in favor of
CenterPoint provided by a Qualifying Bank selected by JF US and reasonably
acceptable to CenterPoint which shall be held in escrow by the Escrow Agent
pursuant to an escrow agreement to be entered into by and among CenterPoint, JF
US and the Escrow Agent, and in form and content reasonably acceptable to
CenterPoint, to secure the Company’s performance with respect to Tranche II,
Tranche III and Tranche IV.  CenterPoint
shall have the right to direct the Escrow Agent to draw down on such letter of
credit pursuant to the terms of such escrow agreement, in order to satisfy in
whole or in part the obligations of the Company to CenterPoint described in
Section 3.6(C), in the event of a Member Default by JF US with respect to its
obligations in connection with Tranche II, Tranche III and Tranche IV.  The charges of the Qualifying Bank for
issuing the letter of credit described in this Section 3.6(A) shall be borne
directly by CenterPoint, which shall pay such costs directly to the Qualifying
Bank without reimbursement from the Company and without credit for a Capital
Contribution to the Company with respect to such costs.


 


(ii)                                  CenterPoint shall provide security to the
Company and its Affiliates for CenterPoint’s performance of Tranche II, Tranche
III and Tranche IV, in the form of an irrevocable and unconditional standby
letter of credit in the amount of $3 million in favor of the Company provided
by a Qualifying Bank selected by CenterPoint and reasonably acceptable to JF US
which shall be held in escrow by the Escrow Agent pursuant to an escrow
agreement to be entered into by and among CenterPoint, JF US and the Escrow
Agent, and in form and content reasonably acceptable to JF US, to secure
CenterPoint’s performance with respect to Tranche II, Tranche III and Tranche
IV.  JF US shall have the right to direct
the Escrow Agent to draw down on such letter of credit pursuant to the terms of
such escrow agreement, in order to satisfy in whole or in part the obligations
of the CenterPoint to the Company described in Section 3.6(D), in the event of
a Member Default by CenterPoint with respect to its obligations in connection
with Tranche II, Tranche III and Tranche IV. 
The charges of the Qualifying Bank for issuing the letter of credit
described in this Section 3.6(A) shall be borne directly by CenterPoint, who
shall pay such costs directly to the Qualifying Bank without reimbursement from
the Company and without credit for a Capital Contribution to the Company with
respect to such costs.


 


(B)                                For purposes of this Agreement, a “Member
Default” shall mean only a default by a Member, attributable solely to the act
or omission of such Member, resulting in the


 


17





















 


Company not acquiring the Property scheduled to be acquired from
CenterPoint or its Affiliates at Tranche I Closing, Tranche II Closing, Tranche
III Closing or Tranche IV Closing, and (i) in the case of JF US, shall include
only a willful and intentional default in the making of Capital Contributions
required to fund the purchase of Properties in Tranche I, Tranche II, Tranche
III or Tranche IV as provided hereunder or a failure to comply with Section
3.8; and (ii) in the case of CenterPoint, shall include only a willful and
intentional default prohibiting the sale of any Property in Tranche I, Tranche
II, Tranche III or Tranche IV to the Company as contemplated by the Purchase
Agreement or a failure to comply with Section 3.8.


 


(C)                                In the event of a Member Default by JF US
which is not cured as described in Section 3.6(E) and is not waived by
CenterPoint, CenterPoint shall be entitled to a preferred interest which (i)
shall entitle CenterPoint to a Distribution of $15 million from the first
available Distributable Cash flow of the Company, prior to any other
Distributions by the Company, and (ii) shall be considered to be satisfied and
paid by CenterPoint’s draw down of $15 million from the letter of credit
described in Section 3.6(A).  In
addition, in the event of a Member Default by JF US which is not cured as
described in Section 3.6(E), CenterPoint shall be entitled to require JF US to
purchase CenterPoint’s Membership Interest, or cause the Company to redeem its
Membership Interest, as provided in Section 9.12.  In the event that CenterPoint receives the
Distribution of $15 million upon drawing down in the letter of credit upon a
Member Default by JF US, CenterPoint shall not be further entitled to pursue
legal remedies against JF US under the Purchase Agreement, except as otherwise
expressly provided therein.


 


(D)                               In the event of a Member Default by
CenterPoint which is not cured as described in Section 3.6(E) and is not waived
by JF US, JF US shall be entitled to a payment of $3 million from CenterPoint,
which shall be considered to be satisfied and paid by the Company’s draw down
of $3 million from the letter of credit described in Section 3.6(A).  The payment of $3 million from CenterPoint
upon a Member Default by CenterPoint shall not prevent the Company from pursuing
legal remedies against CenterPoint under the Purchase Agreement, except as
otherwise expressly provided therein.


 


(E)                                 In the event of a Member Default by either
CenterPoint or JF US, as the case may be, such Member shall be permitted to
cure the Member Default, consistent with any applicable cure, notice and grace
periods under the Credit Facility and/or the Purchase Agreement.


 


Section
3.7                                      Other Activities. 
Subject to the other express provisions of this Agreement and any other
agreements with the Company, including, without limitation, the Right of First
Offer Agreement, the Management Agreement and any services agreements to which
a Member or Affiliate of a Member may be a party, each Member, member of the
Board or Officer of the Company, at any time and from time to time, may engage
in and own interests in other business ventures of any type and description,
independently or with others (including business ventures in competition with
the Company).  In this regard, JF US
recognizes that CenterPoint and its Affiliates are in the business of
acquiring, developing, owning, leasing, operating and selling real property and
interests therein for profit and engaging in all activities related or
incidental thereto.  Neither the Company
nor JF US nor any Affiliate of JF US shall have any right by virtue of this
Agreement or the Company relationship created hereby in or to any ventures or
activities of CenterPoint and its Affiliates or to the income or proceeds
derived therefrom or the pursuit of such other ventures or opportunities by
CenterPoint and its Affiliates, even if competitive with the business of the
Company, and the same are hereby consented to by JF US.  Similarly, CenterPoint recognizes that JF US
and its Affiliates are in the business of acquiring, developing, owning,
leasing, operating and selling real property and interests therein for profit
and engaging in all activities related or incidental thereto.  Neither the Company nor CenterPoint nor any


 


18





















 


Affiliate of CenterPoint shall have any right by
virtue of this Agreement or the Company relationship created hereby in or to
any ventures or activities of JF US and its Affiliates or to the income or
proceeds derived therefrom or the pursuit of such other ventures or
opportunities by JF US and its Affiliates, even if competitive with the
business of the Company, and the same are hereby consented to by
CenterPoint.  Except as provided in the
Right of First Offer Agreement, CenterPoint and its Affiliates shall not be
obligated to present to the Company any particular investment, development,
leasing or other similar opportunity, and CenterPoint and its Affiliates shall
have the right to take for its own account any such opportunity.  JF US and its Affiliates shall not be
obligated to present to the Company any particular investment, development,
leasing or other similar opportunity, and JF US and its Affiliates shall have
the right to take for its own account any such opportunity.  Notwithstanding the foregoing, (i) for so
long as CenterPoint (or an Affiliate thereof) is a Member, CenterPoint shall
not enter into any Similar Business Arrangements with any other Australian
listed or unlisted property trust, managed investment scheme or company; and
(ii) until the earlier of the (a) termination and dissolution of the Company
pursuant to Section 10.1 of this Agreement, (b) date on which CenterPoint is no
longer a Member, or (c) provided that the Right of First Offer Agreement is in
full force and effect, the date on which CenterPoint shall not have, during the
prior twelve (12) month period, offered to the Company for purchase at least
$200,000,000 of Company Property; none of JF US, JF US Inc., JF US Industrial,
James Fielding, Mirvac or any Affiliate of such entities shall acquire,
directly or indirectly, any Industrial Property in the JF US Territory without
the written consent of CenterPoint, which consent may be withheld in its sole
discretion.  Nothing in this Section 3.7
is intended to modify the rights and obligations of the parties under the Right
of First Offer Agreement and the Management Agreement.


 


Section
3.8                                      Credit Facility.  Each
Member shall take all acts and execute and deliver all documents as are
reasonably required of such Member to comply with the terms of the Credit
Facility, subject to applicable cure, notice and grace periods thereunder.  Without limiting the generality of the
foregoing, the Members acknowledge that, pursuant to the terms of the Credit Facility,
the Company may be required to form one or more special purpose entities to
acquire and/or own Company Property and agree that, unless the terms of the
Credit Facility provide or the Board directs otherwise, any such special
purpose entity shall be a wholly-owned Delaware limited liability company.  Notwithstanding anything contained in this
Agreement to the contrary, in the event that one or more special purpose
entities are formed to acquire and/or own Company Property, all provisions,
covenants, conditions and other matters which apply to the Company shall apply
equally, to the extent applicable, to any such special purpose entity or
entities formed pursuant to the terms of the Credit Facility, and such special
purpose entity or entities shall be organized pursuant to organizational documents
reasonably acceptable to the Board. 
Furthermore, unless CenterPoint shall agree in its sole discretion to
the contrary, JF US hereby agrees that it shall cause the Company to elect the
Tranche II Funding Floating Rate Component and the Tranche III Funding Floating
Rate Component (each, as defined in the Financing Proposal attached hereto as
Exhibit 1) and the related release provisions contemplated under such Financing
Proposal.


 


ARTICLE IV


CAPITAL
ACCOUNTS


 


Section
4.1                                      Establishment and Determination of Capital
Accounts.  A capital account (“Capital Account”) shall
be established for each Member on the books of the Company.  Each Member’s Capital Account shall be:


 


(A)                              increased by any Capital Contributions made
by such Member pursuant to the terms of this Agreement and such Member’s share
of Profits, the amount of any Company liabilities that are assumed by such
Member and any other items of income and gain allocated to such Member pursuant
to Article V;


 


19





















 


(B)                                decreased by such Member’s share of Losses,
any distributions to such Member of cash or the Fair Market Value of any other
Company property (net of liabilities assumed by such Member and liabilities to
which such property is subject) distributed to such Member, the amount of any
liabilities of such Member that are assumed by the Company (except to the
extent such assumption was already taken into account in the determination of
the amount of such Member’s Capital Contributions) and any other deduction
allocated to such Member pursuant to Article V; and


 


(C)                                adjusted as otherwise required by the Code
and the Treasury Regulations thereunder, including but not limited to, the
rules of Treasury Regulation Section 1.704-1(b)(2)(iv).  Any references in this Agreement to the
Capital Account of a Member shall be deemed to refer to such Capital Account as
the same may be increased or decreased from time to time as set forth above.


 


Section
4.2                                      Computation of Amounts.  For
purposes of computing the amount of Profits or Losses of the Company to be
allocated pursuant to this Article IV and to be reflected in the Capital
Accounts, the determination, recognition and classification of any item of
income, gain, loss or deduction shall be the same as its determination,
recognition and classification for federal income tax purposes (including any
method of depreciation, cost recovery or amortization used for this purpose),
provided that:


 


(A)                              the computation of all items of income, gain,
loss and deduction shall include tax-exempt income and those items described in
Treasury Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the fact
that such items are not includable in gross income or are not deductible for
federal income tax purposes;


 


(B)                                if the Book Value of any Company property is
adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f),
the amount of such adjustment shall be taken into account as gain or loss from
the disposition of such property and the amount of such gain or loss shall be
allocated according to Section 5.5 to the Members immediately prior to the
event that causes the calculation of such gain or loss;


 


(C)                                items of income, gain, loss or deduction
attributable to the disposition of Company property having a Book Value that
differs from its adjusted basis for tax purposes shall be computed by reference
to the Book Value of such property;


 


(D)                               items of depreciation, amortization and other
cost recovery deductions with respect to Company property having a Book Value
that differs from its adjusted basis for tax purposes shall be computed by
reference to the property’s Book Value in accordance with Treasury Regulation
Section 1.704-1(b)(2)(iv)(g);


 


(E)                                 to the extent an adjustment to the adjusted
tax basis of any Company asset pursuant to Code Sections 732(d), 734(b) or
743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis); and


 


(F)                                 to the extent that the Company distributes
any asset in kind to the Members, the Company shall be deemed to have realized
Profit or Loss thereon in the same manner as if the Company had sold such asset
for an amount equal to the Fair Market Value (as determined by all


 


20





















 


the Members) of such asset or, if greater and otherwise required by the
Code, the amount of debts to which such asset is subject.


 


Section
4.3                                      Negative Capital Accounts.  No
Member shall be required to pay to the Company or any other Member any deficit
or negative balance which may exist from time to time in such Member’s Capital
Account, whether upon liquidation or dissolution of the Company or otherwise.


 


Section
4.4                                      Company Capital.  No
Member shall be paid interest on any Capital Contribution to the Company or on
such Member’s Capital Account, and no Member shall have any right (a) to demand
the return of such Member’s Capital Contribution or any other distribution from
the Company (whether upon resignation, withdrawal or otherwise), except upon
dissolution of the Company pursuant to Article X hereof, or (b) to cause a
partition of the Company’s assets.


 


Section
4.5                                      Adjustments to Book Value.  The
Company shall adjust the Book Value of its assets to fair market value in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) as of the
following times: (i) at the Board’s discretion in connection with the issuance
of Membership Interests in the Company; (ii) at the Board’s discretion in
connection with the distribution by the Company to a Member of more than a de
minimis amount of Company assets, including money, if as a result of such
distribution, such Member’s interest in the Company is reduced; and (iii) the
liquidation of the Company within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g).  Any such increase
or decrease in Book Value of an asset shall be allocated as a Profit or Loss to
the Capital Accounts of the Members under Section 5.5 (determined immediately
prior to the acceptance of additional capital).


 


Section
4.6                                      Compliance with Treasury Regulation Section
1.704-1(b).  The provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Treasury
Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner
consistent with such Treasury Regulations. In the event the Board shall
determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto (including, without limitation,
debits or credits relating to liabilities which are secured by contributed or
distributed property or which are assumed by the Company or any Member), are
computed in order to comply with such regulation, the Board may make such
modification, provided that it is not likely to have a material effect on the
amount distributable to any Member pursuant to Section 5.2 hereof upon the
dissolution of the Company.  The Board
also shall (i) make any adjustments that are necessary or appropriate to
maintain equality between the Capital Accounts of the Members and the amount of
Company capital reflected on the Company’s balance sheet, as computed for book
purposes, in accordance with Treasury Regulation Section 1.704-1(b)(iv)(g), and
(ii) make any appropriate modifications in the event unanticipated events might
otherwise cause this Agreement not to comply with Treasury Regulation Section
1.704-1(b).


 


Section
4.7                                      Transfer of Capital Accounts.  The
original Capital Account established for each substituted Member shall be in
the same amount as the Capital Account of the Member which such substituted
Member succeeds, at the time such substituted Member is admitted to the
Company.  The Capital Account of any
Member whose interest in the Company shall be increased or decreased by means
of the transfer to it of all or part of the Interest of another Member shall be
appropriately adjusted to reflect such transfer.  Any reference in this Agreement to a Capital
Contribution of or distribution to a Member that has succeeded any other Member
shall include any Capital Contributions or distributions previously made by or
to the former Member on account of the Interest of such former Member
transferred to such Member.


 


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ARTICLE V


DISTRIBUTIONS;
ALLOCATIONS OF PROFITS AND LOSSES


 


Section
5.1                                      Generally.  Subject to the provisions of
Section 18-607 of the Act and to the provisions of this Article V, the Board
shall have sole discretion regarding the amounts and timing of Distributions of
Distributable Cash to Members.  The Board
shall provide for Distributions to Members at least once per calendar quarter
and may provide for more frequent distributions.


 


Section
5.2                                      Distributions of Distributable Cash. 
Subject to Section 5.1, Distributions of Distributable Cash pursuant to
this Section 5.2 shall be made to the Members as follows:


 


(A)                              Except as otherwise provided in Section
5.2(B) with respect to the Performance Return, all Distributions of
Distributable Cash shall be made to the Members in proportion to their
respective Sharing Percentages as of the last day of the period with respect to
which such Distribution is made; and


 


(B)                                Notwithstanding Section 5.2(A) and prior to
any other Distributions pursuant to Section 5.2, CenterPoint shall receive an
amount equal to the Performance Return, computed annually for each Fiscal Year
in accordance with Section 5.3 and paid with the fourth (4th)
quarter Distribution by the Company on or before July 15 after the close of the
Fiscal Year for which such Performance Return is computed; provided that, if
the amount of such Performance Return for any Fiscal Year as determined by the
audit of the Company for such Fiscal Year described in Section 6.9 differs from
the amount distributed to CenterPoint pursuant to this Section 5.2(B), then (i)
any amount paid to CenterPoint in excess of the amount determined pursuant to
the audit shall offset, or (ii) any amount determined pursuant to the audit in
excess of the amount paid to CenterPoint shall increase, as the case may be,
the next Distribution of Distributable Cash to be made to CenterPoint under
Section 5.2(A).


 


(C)                                Notwithstanding Section 5.2(A) and Section
5.2(B), any cash revenues received by the Company pursuant to Section 3.3 of
the Master Lease Agreement shall be distributed entirely to JF US and shall not
be taken into account in the computation of the other Distributions provided
herein.


 


(D)                               Notwithstanding any other provision of this
Section 5.2, any Distribution or deemed Distribution to a Member, as a result
of a Member Default or deemed Member Default pursuant to Section 3.6, shall be
made or shall be deemed to be made to the Member who has not committed the
Member Default.


 


Section
5.3                                      Computation of Performance Return.


 


(A)                              The Performance Return distributable with
respect to any Fiscal Year pursuant to Section 5.2(B) shall be equal to twenty
percent (20%) of the excess of the Modified Net Operating Cash Flow of the
Company for such Fiscal Year over the Performance Return Hurdle Amount for such
Fiscal Year; provided that, the Performance Return distributable with respect
to any Fiscal Year shall not exceed twenty percent (20%) of the excess of the
Performance Return Limitation Amount for such Fiscal Year over the Performance
Return Hurdle Amount for such Fiscal Year. 
The Performance Return shall be estimated on a quarterly basis as part
of the reports prepared for the Company and the Board as described in Section
6.9, and appropriate reserves shall be made by the Company for the payment of
the Performance Return.


 


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(B)                                For purposes of this Section 5.3, the
following terms shall have the following meanings:


 


(i)                                     “Modified Net Operating Cash Flow” means,
with respect to any Fiscal Year of the Company, the net income of the Company
as determined pursuant to GAAP for such Fiscal Year with the following adjustments:


 


(a)                                  all revenues (including minimum or base rent,
tenant payments for expenses passed through pursuant to leases, other rent (if
any), interest, and other revenue items) shall be included on a cash basis and
only to the extent actually received, and any adjustments made to accommodate “straight-line”
rental income shall be reversed;


 


(b)                                 interest expense, depreciation expense and
amortization of financing costs and other non-cash amortization expenses, to
the extent subtracted in determining net income, shall be added back;


 


(c)                                  all revenues received by the Company pursuant
to a Master Lease Agreement, and otherwise includible in (a), shall be excluded
from revenue;


 


(d)                                 payments of management fees to CenterPoint
pursuant to the Management Agreement shall be added back to net income, but no
add-back shall be made for management fees which are reimbursed by tenants and
therefore included in revenues described in (a);


 


(e)                                  all additions to reserves contemplated in one
or more approved Annual Operating Budgets shall be permitted as expense items
in the determination of net income to the extent permitted by GAAP, and net
income shall be reduced by expenditures up to one percent (1%) of the aggregate
Investment Base for Company Property which otherwise would be capital
expenditures pursuant to GAAP; and


 


(f)                                    any gains actually realized from the sale or
disposition of Property, measured by the excess of (a) the net proceeds of such
sale or disposition over (b) the Investment Base for such Property, including
capital expenditures with respect to such Property (and adjusted by two percent
per year in the same manner as the Performance Return Hurdle Rate described
below), shall be included in GAAP net income for this purpose.


 


(ii)                                  “Investment Base” means, for each Fiscal Year
of the Company, a memorandum account maintained by the Company with respect to
each Company Property equal to the quotient obtained by dividing (a) the
sum of (i) the gross acquisition cost of such Company Property as of the first
day of such Fiscal Year determined on an unleveraged basis (without reduction
for any liabilities to which such Property is subject or any other liabilities
of the Company), including all acquisition costs associated with the
acquisition of such Property multiplied by the number of days in such
Fiscal Year, plus (ii) the sum of the products obtained by multiplying
(1) the amount of each capital expenditure made with respect to such Company
Property during such Fiscal Year by (2) the number of days in the period
commencing on the date on which each such capital expenditure was made and
ending on the last day of such Fiscal Year (inclusive) by


 


23





















 


(b) the number of days in such Fiscal Year.  The Board shall determine the Investment Base
memorandum account with respect to each Property acquired by the Company, and
may establish procedures or delegate such determination as the Board shall
decide by Approval of a Majority of its members.  With respect to all Property acquired
pursuant to the Purchase Agreement or the Right of First Offer Agreement, the
acquisition date of all such Property shall be deemed to be the date on which
the Company first acquires Property pursuant to the Purchase Agreement or the
Right of First Offer Agreement.


 


(iii)                               “Performance Return Hurdle Amount” means, for
each Fiscal Year, the aggregate, for all Property, of the sum obtained by adding
(a) the quotient of (i) the Investment Base for each Property multiplied
by (ii) the Performance Return Hurdle Rate applicable to a portion of such
Fiscal Year for each such Property, multiplied by (iii) the number
of days for which such Performance Return Hurdle Rate applies to such Fiscal
Year, divided by (iv) the total number of days in such Fiscal Year,
plus (b) the quotient of (i) the Investment Base for each
Property, multiplied by (ii) the Performance Return Hurdle Rate
applicable to the remaining portion of such Fiscal Year for each such Property,
multiplied by (iii) the number of days for which such Performance
Return Hurdle Rate applies to such Fiscal Year, divided by (iv) the
total number of days in such Fiscal Year. 
In any case in which a Property is owned by the Company for less than an
entire Fiscal Year of twelve (12) months, the Performance Return Hurdle Amount
with respect to such Property shall be prorated, based upon the number of days
in such Fiscal Year during which the Company actually owned such Property as a
percentage of the total number of days in such Fiscal Year.


 


(iv)                              “Performance Return Hurdle Rate” means with
respect to each Property owned by the Company, a rate equal to (y) 8.25%
for the first Year of Ownership and (z) the percentage equal to the
product of the Performance Return Hurdle Rate for the most recent Year of
Ownership multiplied by 102% for each subsequent Year of Ownership.


 


(v)                                 “Performance Return Limitation Amount” means,
for each Fiscal Year, the aggregate, for all Property of the Company, of the
Investment Base for such Property multiplied by the Performance Return
Limitation Rate for such Property.  In
any case in which a Property is owned by the Company for less than an entire
Fiscal Year of twelve (12) months, the Performance Return Limitation Amount
with respect to such Property shall be prorated, based upon the number of days
in such Fiscal Year during which the Company actually owned such Property as a
percentage of the total number of days in such Fiscal Year.


 


(vi)                              “Performance Return Limitation Rate” with
respect to each Property of the Company means the rate of return equal to the
Performance Return Hurdle Rate plus four hundred (400) basis points.


 


(vii)                           “Year of Ownership” means the twelve (12)
month period commencing on the date of acquisition of each Property by the
Company.


 


(C)                                All determinations with respect to the
computation of the Performance Return shall be made upon the Approval of the
Board.  In the event that CenterPoint
disagrees with the determination of the Board with respect to all or any
portion of the determination of the Performance Return for any Fiscal Year,
then CenterPoint and the Board shall present a summary of their computations of
the Performance Return to the independent certified public accountants


 


24





















 


then engaged to audit the books and financial reports of the
Company.  The determination of such
accountants shall be binding.


 


(D)                               With respect to any Property or group of
Properties acquired by the Company pursuant to the Right of First Offer
Agreement, the Performance Return Hurdle Rate for the first Year of Ownership
of such Property shall be 8.25% unless the parties otherwise negotiate a
different Performance Return Hurdle Rate as part of negotiations for the
acquisition of such Property or group of Properties by the Company.


 


Section
5.4                                      Final Payment of Performance Return.  In
the event that CenterPoint’s Membership Interest in the Company is acquired by
JF US, CenterPoint shall be entitled to a Distribution of the Performance
Return, computed to the date of such termination on a prorated basis, with such
Distribution to be made on the date CenterPoint’s Membership Interest is
acquired by JF US; provided, however, that any such Distribution shall be
subject to Section 11.1 and that no Distribution of Performance Return shall be
made if such termination of the Company results from circumstances described in
Section 9.11(A)(i).


 


Section
5.5                                      Allocation of Profits and Losses.  The
items of income, expense, gain and loss of the Company comprising Profit or
Loss for each Taxable Year shall be allocated:


 


(A)                              first, CenterPoint shall be allocated an
amount of Profit equal to the amount of the Performance Return computed as
provided in Section 5.2(B) which is actually distributed to CenterPoint during
such Taxable Year;


 


(B)                                second, a Member receiving a Distribution
described in Section 5.2(C) or 5.2(D) shall receive an allocation of Profits
equal to the amount of such Distribution; and


 


(C)                                third, any remaining Profits or Losses shall
be allocated among the Members in accordance with their respective Sharing
Percentages.


 


Section
5.6                                      Regulatory and Special Allocations. 
Notwithstanding the provisions of Section 5.5:


 


(A)                              Company Minimum Gain Chargeback.  If there is a net decrease in Company Minimum
Gain during any Taxable Year, each Member shall be specially allocated items of
taxable income or gain for such Taxable Year (and, if necessary, subsequent
Taxable Years) in an amount equal to such Member’s share of the net decrease in
Company Minimum Gain, determined in accordance with Treasury Regulation Section
1.704-2(g).  The items to be so allocated
shall be determined in accordance with Treasury Regulation Sections
1.704-2(f)(6) and 1.704-2(j)(2).  This
paragraph is intended to comply with the minimum gain chargeback requirement in
Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently
therewith.


 


(B)                                Member Nonrecourse Debt Minimum Gain
Chargeback.  Member Nonrecourse
Deductions shall be allocated in the manner required by Treasury Regulation
Section 1.704-2(i).  Except as otherwise
provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net
decrease in Member Minimum Gain during any Taxable Year, each Member that has a
share of such Member Minimum Gain shall be specially allocated items of taxable
income or gain for such Taxable Year (and, if necessary, subsequent Taxable
Years) in an amount equal to that Member’s share of the net decrease in Member
Minimum Gain.  Items to be allocated
pursuant to this paragraph shall be determined in accordance with Treasury Regulation
Sections 1.704-2(i)(4)


 


25





















 


and 1.704-2(j)(2).  This
paragraph is intended to comply with the minimum gain chargeback requirements
in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.


 


(C)                                Qualified Income Offset.  If any Member unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of taxable income and gain
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate the adjusted capital account deficit (determined according to
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)) created by such adjustments,
allocations or distributions as quickly as possible.  This paragraph is intended to comply with the
qualified income offset requirement in Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.


 


(D)                               Nonrecourse Deductions.  Nonrecourse Deductions (as determined
according to Treasury Regulation Section 1.704-2(b)(1)) for any Fiscal Year
shall be allocated to the Members in accordance with the allocation of Losses
hereunder.


 


(E)                                 Ordering Rules.  Anything contained in this Agreement to the
contrary notwithstanding, allocations for any Fiscal Year or other period of
nonrecourse deductions (as defined in clause (D) above), or of items required
to be allocated pursuant to the minimum gain chargeback requirements contained
in Section 5.6(A) and Section 5.6(B), shall be made before any other
allocations hereunder.


 


(F)                                 Offsetting Allocations.  If, and to the extent that, any Member is
deemed to recognize any item of income, gain, deduction or loss as a result of
any transaction between such Member and the Company pursuant to Sections 1272-1274,
7872, 483, 482 or 83 of the Code or any similar provision now or hereafter in
effect, and the Board determines that any corresponding Profit or Loss of the
Member who recognizes such item should be allocated to such Member in order to
reflect the Members’ Economic Interest in the Company, then the Board may so
allocate such Profit or Loss.


 


Section
5.7                                      Tax Allocations. 
Notwithstanding the provisions of Section 5.5:


 


(A)                              Allocations for Federal Income Tax Reporting.  Except as provided in Section 5.7(B), for
federal, state and local income tax purposes, each item of income, gain, loss
or deduction shall be allocated among the Members in the same manner and in the
same proportion that the corresponding items included in the computation of
Profits or Losses have been allocated among the Members’ respective Capital
Accounts.


 


(B)                                Book-Tax Differences.  In accordance with Section 704(c) of the Code
and the Treasury Regulations thereunder, income, gain, loss and deduction with
respect to any property contributed to the capital of the Company shall, solely
for tax purposes, be allocated among the Members so as to take account of any
variation between the adjusted basis of such asset for federal income tax
purposes and its initial Book Value. 
Such allocations shall be made using any reasonable method specified in
Treasury Regulations Section 1.704-3 as the Board determines, provided that any
such allocations with respect to Property treated as contributed by CenterPoint
to the Company pursuant to this Agreement (including, without limitation,
pursuant to Section 3.4(B)) shall be made using the “traditional method” with
the “ceiling rule” specified in Treasury Regulations Section 1.704-3(b).  In the event the Book Value of any Company
asset is adjusted pursuant to Section 4.2(B), subsequent allocations of income,
gain, loss and deduction with respect to such asset shall take into account any
variation between the adjusted basis of such asset


 


26





















 


for federal income tax purposes and its Book Value in the same manner
as under Section 704(c) of the Code and the Treasury Regulations
thereunder.  Such allocation shall be
made based on any reasonable method specified in Treasury Regulations Section
1.704-3 as the Board determines.


 


Section
5.8                                      Section 754 Election.  Upon
the request of the Board, the Company shall elect, pursuant to Section 754 of
the Code, to adjust the basis of Company property as permitted and provided in
Sections 734 and 743 of the Code.  Such
election shall be effective solely for federal (and, if applicable, state and
local) income tax purposes and shall not result in any adjustment to the Book
Value of any Company asset or to the Member’s Capital Accounts (except as provided
in Treasury Regulations Section 1.704-1(b)(2)(iv)(m)) or in the determination
or allocation of Profit or Loss for purposes other than such tax purposes.


 


ARTICLE VI


MANAGEMENT
POWER, RIGHTS AND DUTIES


 


Section
6.1                                      Management by the Board.


 


(A)                              Board. 
The business and affairs of the Company shall be managed under the
direction of a board of managers (the “Board”). 
The Board shall initially consist of six (6) Persons designated as
follows:  CenterPoint shall designate
three (3) Persons and JF US shall designate three (3) Persons.  CenterPoint hereby designates, John S. Gates,
Michael M. Mullen and Paul S. Fisher as its initial designees on the Board, one
of whom shall serve as Chairman of the Board until the end of the first full
Fiscal Year of the Company.  JF US hereby
designates Greg Paramor, Adrian Harrington and Andrew Martin as its initial
designees on the Board.  JF US shall
designate the Chairman of the Board for the second full Fiscal Year of the
Company, and thereafter CenterPoint and JF US shall alternate with respect to
designation of the Chairman of the Board for succeeding Fiscal Years.  Any Member having the right to designate a
member or members of the Board shall also have power to remove or replace
members of the Board so designated by such Member.


 


(B)                                General Powers.  All powers of the Company shall be exercised
by the Board.  Decisions of the Board
within its scope of authority shall be binding upon the Company and each Member
and shall be evidenced by the affirmative vote of a Majority of the members of
the Board.  The Board shall have full,
exclusive, and complete discretion, power, and authority, subject to any other
provisions of this Agreement or by non-waivable provisions of applicable law,
to manage, control, administer, and operate the business and affairs of the
Company, and to make all decisions affecting such business and affairs,
including, without limitation, as described in Section 2.8 above.  Notwithstanding anything in this Agreement to
the contrary, the members of the Board designated by CenterPoint shall abstain
from voting on any matters involving (i) the acquisition of Property
pursuant to the Purchase Agreement or the Right of First Offer Agreement; (ii)
any transaction with CenterPoint or any of its Affiliates, including, without
limitation, the Master Lease Agreement, the Management Agreement and the
Purchase Agreement, as contemplated by Section 6.3(B)(xxiii);and (iii) the
arrangement and execution of the Credit Facility.


 


(C)                                Term of Office.  Members of the Board shall serve until their
resignation, death or removal in accordance with Section 6.1(F) below by any
Person or group of Persons having the right to designate such member of the
Board.


 


27





















 


(D)                               Vacancies. 
Any vacancy on the Board shall be filled in accordance with Section
6.1(A) above.


 


(E)                                 Resignation. 
A member of the Board may resign as such by delivering his, her or its
written resignation to the Company at the Company’s principal office addressed
to the Board.  Such resignation shall be
effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.


 


(F)                                 Removal. 
Any Member having the right to designate a member or members of the
Board shall also have the power to remove or replace members of the Board so
designated by such Member; provided, however, that if such Member shall become
a Defaulting Member, then for such time as such Member shall be a Defaulting
Member, the Non-Defaulting Member or Members entitled to designate Board
Members shall have the right to designate an additional Board Member who shall
serve until such time, if any, as such Defaulting Member shall no longer be a
Defaulting Member.


 


(G)                                Compensation. 
A member of the Board shall not be paid compensation by the Company for
his, her or its services as such.  The
foregoing shall not be deemed to limit or restrict the payment of any
reasonable compensation or remuneration to any Person in such Person’s capacity
as an Officer, advisor or consultant to the Company or any agreement or
arrangement with the Company which has been approved by the Board.


 


(H)                               Reimbursement.  The members of the Board shall be entitled to
be reimbursed for reasonable out-of-pocket costs and expenses incurred in the
course of their service hereunder, including, without limitation, attendance at
Board and Member meetings.


 


(I)                                    Reliance by Third Parties.  Any Person dealing with the Company, other
than a Member, may rely on the authority of the Board (or any Officer
authorized by the Board) in taking any action in the name of the Company
without inquiry into the provisions of this Agreement or compliance herewith,
regardless of whether that action actually is taken in accordance with the
provisions of this Agreement.  Every
agreement, instrument or document executed by a member of the Board (or any
Officer authorized by the Board) in the name of the Company with respect to any
business or property of the Company shall be conclusive evidence in favor of
any Person relying thereon or claiming thereunder that (i) at the time of the
execution or delivery thereof this Agreement was in full force and effect, (ii)
such agreement, instrument or document was duly executed according to this
Agreement and is binding upon the Company, and (iii) the Board or such Officer
was duly authorized and empowered to execute and deliver such agreement,
instrument or document for and on behalf of the Company.


 


(J)                                   Meetings of the Board; Actions.  The Board shall meet at least four (4) times
per year, and may meet more frequently as the Board members shall
determine.  One (1) meeting per year
shall be held in Sydney, Australia, and three (3) meetings per year shall be
held in the United States, unless the Board members determine otherwise.  Subject to the foregoing, meetings of the
Board shall be held at the principal place of business of the Company or at any
other place that a Majority of the members of the Board determine.  At any meeting, any member of the Board may
participate by telephone or similar communication equipment, provided each
member of the Board can hear the others. Persons present by telephone shall be
deemed to be present “in person” for purposes hereof.  The presence of at least four (4) members of
the Board, at least two of which shall be the members of the Board designated
by JF US, shall constitute a quorum for the transaction of business.  Meetings shall be held at least once each
quarter, or more often in accordance with a schedule established by the
Board.  The Board also may make
decisions,


 


28





















 


without holding a meeting, by written consent of a Majority of the
members of the Board required for such decision, with prior notice thereof to
all other members of the Board.  Minutes
of each meeting and a record of each decision shall be kept by the
secretary.  Decisions of the Board shall
require the approval of at least a Majority of its members.  Only members of the Board shall be entitled
hereunder to attend meetings of the Board; provided, however, that a Majority
of the members of the Board present at a meeting may approve the presence of
any other Person for all or any portion of such meeting. In addition, any two
(2) or more members of the Board may convene a meeting thereof upon at least
five (5) Business Days’ prior written notice to the other members of the
Board.  Notwithstanding the foregoing
provisions, each member of the Board who is entitled to notice waives notice if
before or after the meeting the member of the Board signs a waiver of notice or
appears at or participates in the meeting.


 


(K)                               No Liability. 
So long as a member of the Board, in reasonable good faith, believes he
or she is acting in the Company’s interest, such member of the Board shall not
be held to be in breach of this Agreement or otherwise be liable to any Person
in any respect.


 


Section
6.2                                      Officers.


 


(A)                              Designation and Appointment.  Subject to Approval by the Board, CenterPoint
may, from time to time, designate employees of CenterPoint as may be necessary
or appropriate for the conduct of the Company’s day-to-day business (subject to
the supervision and control of the Board) as Officers of the Company.  Any number of offices may be held by the same
person. In its discretion, CenterPoint may choose not to fill any office for
any period as it may deem advisable. 
Officers need not be residents of the State of Delaware or Members.  Any Officers so designated shall have such
authority and perform such duties as are herein provided and as the Board may,
from time to time, delegate to them.  The
Board may assign titles to particular Officers. Each Officer shall hold office
until his or her successor shall be duly designated and shall qualify or until
his or her death or until he shall resign or shall have been removed in the
manner hereinafter provided.  The
Officers of the Company shall serve without compensation unless otherwise
Approved by the Board.  The initial
Officers of the Company shall be as follows (in descending rank):


 


	
  President:

  	
   

  	
  Paul S. Fisher

  
	
  Vice President:

  	
   

  	
  Michael M. Mullen and Adrian Harrington

  
	
  Secretary:

  	
   

  	
  Daniel J. Hemmer

  
	
  Asst. Secretary:

  	
   

  	
  Michael Tortoricci and
  Adrienne Parkinson

  



 


(B)                                Resignation/Removal.  Any Officer may resign as such at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein, or if no time be specified, at the time of its receipt by
the Board.  The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.  Any Officer
may be removed at any time upon Approval by the Board.  Designation of an Officer shall not of itself
create any contractual or employment rights.


 


(C)                                Duties of Officers Generally.  The Officers, in the performance of their
duties as such, shall owe to the Company duties of loyalty, good faith and due
care of the type owed by the officers of a corporation to such corporation and
its equityholders under the laws of the State of Delaware; provided, however,
so long as any Officer, in reasonable good faith, believes he or she is acting
in the Company’s interest, such Officer shall not be held to be in breach of
duties promulgated hereunder or otherwise be liable to any Person in any
respect.


 


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(D)                               President. 
The president shall, subject to the powers of the Board, be the chief
administrative officer of the Company and shall have general charge of the
business, affairs and property of the Company, and control over its other
Officers and agents. The president shall see that all orders and resolutions of
the Board are carried into effect and shall have authority to suspend or to
remove any agent or Officer of the Company, unless the Board has directed
otherwise with respect to a specified Officer or Officers.  In the absence of the president, the duties
of the president shall be performed and his or her authority may be exercised
by any other Officer of the Company.  The
president shall have such other powers and perform such other duties as may be
prescribed by the Board.


 


(E)                                 Vice President.  Each vice president shall perform such duties
and have such other powers as the president or the Board may from time to time
prescribe.


 


(F)                                 Secretary. 
The secretary shall have the general duties, powers and responsibilities
of a secretary of a corporation. The secretary shall attend all meetings of the
Board and of the Members and record all of the proceedings of such meetings in
a book to be kept for that purpose.  The
secretary shall keep all documents as may be required under this Agreement and
the Act.  The secretary shall perform
such other duties and have such other authority as may be prescribed elsewhere
in this Agreement or from time to time by the president or the Board.


 


(G)                                Assistant Secretary.  In the absence, disability or inability of
the secretary, the assistant secretary shall perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the president or the Board may from time to time prescribe.


 


(H)                               Documents. 
All documents to be entered into by the Company shall be executed by
either the president or a vice president and either the secretary or assistant
secretary, and shall not be effective without both such signatures.


 


Section
6.3                                      Authority of Officers; Restrictions on
Certain Actions.


 


(A)                              Subject to the provisions of this Agreement,
the Officers, without the prior Approval of the Board, shall have the power and
authority to take any and all actions on behalf of the Company as are
necessary, appropriate, proper, advisable, convenient or incidental to or for
the furtherance of the purposes set forth in Section 2.6 as enumerated in
Section 2.7, subject to the restrictions set forth in Section 6.3(B), including
the power and authority to enter into leases of Company Property that are not
Material Leases and do not violate the Leasing Guidelines; provided that, the
Officer shall notify the Board, or cause the property manager to notify the
Board, at least thirty (30) days in advance of execution of any such lease.


 


(B)                                Notwithstanding anything to the contrary
contained herein, an Officer may not take any of the following actions on
behalf of the Company without the prior Approval of the Board:


 


(i)                                     execute or cause to be executed on behalf of
the Company any lease of Company Property that (a) is a Material Lease, or (b)
violates the Leasing Guidelines or (c) otherwise requires the approval of JF US
under the Purchase Agreement, Master Lease Agreement or Management Agreement;


 


30





















 


(ii)                                  purchase or otherwise acquire, sell or
otherwise dispose of any Company Property or any interest in any such Property;


 


(iii)                               modify or deviate from the Annual Operating
Budget or make any capital expenditure except for capital expenditures which
have been authorized in an approved Annual Operating Budget or are necessary
for emergency repairs to a Company Property which, if not made, would
thereafter materially injure the Company Property or the Company;


 


(iv)                              modify the Right of First Offer Agreement or
the Management Agreement (including, without limitation, the Leasing
Guidelines);


 


(v)                                 directly or indirectly declare or make any
Distributions upon any of the Company’s equity securities;


 


(vi)                              enter into or make a material amendment to or
terminate any agreement, contract or commitment except as authorized in an
approved Annual Operating Budget;


 


(vii)                           create any liens or any other encumbrances
whatsoever upon any assets or properties of the Company or its Subsidiaries;


 


(viii)                        enter into any joint venture or material
business alliance or create any Subsidiary other than a wholly-owned
Subsidiary, or acquire any capital stock of or other ownership interest in any
Person, other than the creation of wholly-owned Subsidiaries for the purpose of
owning one or more Company Properties;


 


(ix)                                amend or terminate any agreement relating to
a joint venture or a material business alliance of the Company or any of its
Subsidiaries;


 


(x)                                   make any political or charitable
contribution;


 


(xi)                                enter into or consummate any transaction of
the type contemplated or covered by Section 7.3;


 


(xii)                             delegate authority to any Person to approve
the taking of any action set forth in this Section 6.3(B);


 


(xiii)                          pledge the credit of JF US;


 


(xiv)                         do any act which would make it impossible to
carry on the ordinary business of the Company or to alter the tax status of the
Company;


 


(xv)                            change the name of the Company;


 


(xvi)                         commence (including the filing of a
counterclaim), settle or otherwise dispose of any claim or litigation,
regulatory proceeding or arbitration (other than ordinary course employer or
commercial claims not of a material amount) to which the Company or its
Subsidiaries is, or is to be, a party or by which the Company or its
Subsidiaries or any of its business, assets or properties may be affected;


 


31





















 


(xvii)                      directly or indirectly redeem, purchase or
otherwise acquire, or permit any of its Subsidiaries to redeem, purchase or
otherwise acquire, any of the Company’s or any Subsidiary’s equity securities (including,
in the case of Subsidiaries, warrants, options and other rights to acquire
equity securities);


 


(xviii)                   authorize, issue, sell or enter into any
agreement providing for the issuance (contingent or otherwise), or permit any
of its Subsidiaries to authorize, issue, sell or enter into any agreement
providing for the issuance (contingent or otherwise) of any equity securities
or debt securities with equity features or securities exercisable or
convertible into equity securities or debt securities with equity features;


 


(xix)                           merge or consolidate with any Person or
permit any of its Subsidiaries to merge or consolidate with any Person (other
than a wholly owned Subsidiary);


 


(xx)                              liquidate, dissolve or effect, or permit any
of its Subsidiaries to liquidate, dissolve or effect, a recapitalization or
reorganization in any form of transaction;


 


(xxi)                           enter into or modify any term of the Credit
Facility; make any draw under the Credit Facility or any replacement or renewal
thereof; or create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, Indebtedness
exceeding the amounts Approved therefor by the Board in one or more Approved
Annual Operating Budgets;


 


(xxii)                        make, or permit any of its Subsidiaries to
make, any loans or advances to, guarantees for the benefit of, or Investments
in, any Person (other than a wholly owned Subsidiary), except for Short Term
Investments;


 


(xxiii)                     enter into, or permit any of its Subsidiaries
to enter into, any transaction with any Person (or any Affiliate thereof) who
is an Affiliate of any Officer or member of the Board or related to any such
Person by blood or marriage except as provided for in this Agreement or one or
more current Annual Operating Budgets;


 


(xxiv)                    register any of the Company’s or its
Subsidiaries’ securities under any securities laws;


 


(xxv)                       make any change in the Company or its
Subsidiaries’ Fiscal Year;


 


(xxvi)                    make any amendment or terminate any
constitutive or governing document of the Company or its Subsidiaries,
including, without limitation, the Agreement or Certificate;


 


(xxvii)                 enter into any property management agreement
with respect to a Company Property with any Person other than CenterPoint;


 


(xxviii)              engage or terminate the engagement of the
auditors of the Company;


 


(xxix)                      do any act in contravention of this
Agreement; or


 


(xxx)                         commit to do any of the foregoing.


 


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(C)                                Notwithstanding anything to the contrary
contained herein, none of Messrs. Gates, Mullen and Fisher or any Officers who
are affiliated with CenterPoint shall execute, on behalf of the Company, the
Purchase Agreement, the Management Agreement, the Master Lease Agreement, the
Right of First Offer Agreement or the documentation for the Credit Facility.


 


(D)                               Notwithstanding anything to the contrary
contained herein, the exercise by the Board of the power to approve the
acquisition or disposition of Industrial Property pursuant to Section
6.3(B)(ii) shall be conditioned upon payment of acquisition and disposition
fees, as the case may be, to CenterPoint (pursuant to an agreement to be
entered into as of the date hereof between CenterPoint and JFFM) and James
Fielding or their respective Affiliates in connection with the closing of the
acquisition or disposition transaction.


 


(E)                                 Tax Deferral. 
If so requested in writing by JF US, the Company shall facilitate or
engage in one or more tax deferred exchanges pursuant to Section 1031 of the
Code or other tax deferred transaction in connection with the sale of any
Company Property; provided, however, any such tax deferred exchange shall not
delay the closing of such sale or increase the obligations of CenterPoint with
respect thereto, and any additional costs and expenses relating to any such tax
deferred exchange shall be borne solely by JF US.


 


Section
6.4                                      Limitation on Authority of Members. No Member is an agent of the Company solely
by virtue of being a Member, and no Member has authority to act for the Company
solely by virtue of being a Member.  This
Section 6.4 supersedes any authority granted to the Members pursuant to the
Act.  Any Member who takes any action or
binds the Company in violation of this Section 6.4 shall be solely responsible
for any loss and expense incurred by the Company as a result of the
unauthorized action and shall indemnify and hold the Company harmless with
respect to the loss or expense.


 


Section
6.5                                      Meetings of and Voting by Members.


 


(A)                              Notwithstanding anything to the contrary
herein, no Person shall be entitled to vote with respect to any Membership
Interest unless such Person is a Member, the proxy or an authorized
representative of a Member that is not a natural Person.


 


(B)                                A meeting of the Members may be called at any
time by the Board or by any Member. Meetings of Members shall be held at the
Company’s principal place of business or at any other place designated by the
Board.  Not less than ten (10) Business
Days nor more than ninety (90) calendar days before each meeting, the Board
shall give written notice of the meeting to each Member entitled to vote at the
meeting.  The notice shall state the
time, place and purpose of the meeting. 
Notwithstanding the foregoing provisions, each Member who is entitled to
notice waives notice if before or after the meeting the Member signs a waiver
of the notice which is filed with the records of Members’ meetings, or is
present at the meeting in person or by proxy. A Member entitled to vote may
vote either in person or by written proxy signed by the Member or by his, her
or its duly authorized attorney in fact. 
Persons present by telephone shall be deemed to present “in person” for
purposes hereof.


 


(C)                                Except as otherwise provided in this
Agreement, the affirmative vote of Members holding Membership Interests
representing more than fifty percent (50%) of the outstanding Membership
Interests entitled to vote (determined by Sharing Percentages) shall be
required to approve any matter coming before such Members which is not required
to be determined by the Approval of the Board pursuant to the terms of this
Agreement.


 


33





















 


(D)
In lieu of holding a meeting, the Members may vote or otherwise take action by
written consent signed by Members.


 


Section
6.6                                      Power of Attorney.


 


(A)                              Grant of Power.  Each Member constitutes and appoints the
President of the Company as the Member’s true and lawful attorney-in-fact, and
in the Member’s name, place and stead, to make, execute, sign, acknowledge, and
file:


 


(i)                                     one or more certificates of formation
consistent with the terms of this Agreement;


 


(ii)                                  all documents (including amendments to the
Certificate of Formation) which the attorney-in-fact deems appropriate to
reflect any written amendment, change or modification of this Agreement
approved in accordance with Section 11.8 below;


 


(iii)                               upon the requisite approval, if any, required
elsewhere in this Agreement, any and all other certificates or other instruments
required to be filed by the Company under the laws of the State of Delaware or
of any other state or jurisdiction, including, without limitation, any
certificate or other instruments necessary in order for the Company to continue
to qualify as a limited liability company under the laws of the State of
Delaware;


 


(iv)                              one or more applications to use an assumed
name; and


 


(v)                                 all documents which may be required to
dissolve and terminate the Company and to cancel its Certificate of Formation
upon the requisite approval required elsewhere in this Agreement.


 


(B)                                Irrevocability.  The foregoing power of attorney is
irrevocable and is coupled with an interest, and, to the extent permitted by
applicable law, shall survive the death or disability of a Member.  It also shall survive the Transfer of a
Membership Interest, except that if the transferee is approved for admission as
a Member, this power of attorney shall survive the delivery of the assignment
for the sole purpose of enabling the Attorney-in-Fact to execute, acknowledge
and file any documents needed to effectuate the substitution.  Each Member shall be bound by any
representations made by the attorney-in-fact acting in good faith pursuant to
this power of attorney, and each Member hereby waives any and all defenses
which may be available to contest, negate or disaffirm the action of the
attorney-in-fact taken in good faith under this power of attorney.


 


Section
6.7                                      Authorization of Certain Agreements.  The
members of the Board appointed by JF US shall cause the Company to enter into
the Purchase Agreement, the Management Agreement, the Master Lease Agreement
and the Right of First Offer Agreement with CenterPoint or its Affiliates, and
all agreements necessary to implement the Credit Facility on behalf of the
Company; provided that, by execution of this Agreement by JF US, the members of
the Board shall be deemed to have exercised its duty and authority as provided
in this Section 6.7, and Adrian Harrington and Adrienne Parkinson, as Vice
President and Assistant Secretary of the Company, respectively, are duly
authorized by the Company to execute the agreements described in this Section
without any further action or resolution of the members of the Board appointed
by JF US.


 


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Section
6.8                                      Annual Operating Budget.  The
Company shall prepare a budget for each Fiscal Year (each an “Annual Operating
Budget”).  An Annual Operating Budget for
each Fiscal Year subsequent to 2005 shall be prepared by the Company’s Officers
for submission to the Board not later than sixty (60) days prior to the start
of such Fiscal Year.  Each Annual
Operating Budget shall include proposed budgets, operating plans and leasing
plans for each Company Property and for the Company’s entire portfolio of
Properties, as well as a description of major business objectives and
challenges (including, but not limited to, vacancy, lease rollover, reletting,
sale, refinance, lease option dates, major renovations, and major capital
requirements) for each Company Property and for the Company’s entire portfolio
of Properties for the forthcoming Fiscal Year. 
The Annual Operating Budget also shall set forth the following on a
monthly basis with annual totals, together with an explanation of all material
assumptions made in determining the same: (i) a detailed estimate of the
projected Gross Revenues for the Company Property for the forthcoming Fiscal
Year, which estimate shall set forth as separate line items the projected Gross
Revenues from rent, escalations, and each other type of revenue expected to be
received in such year; (ii) a detailed estimate of the projected operating
expenses for the Company Property for the forthcoming Fiscal Year, which
estimate shall set forth as separate line items the projected operating
expenses with respect to each type of expense expected to be incurred for such
year; (iii) a detailed estimate showing projected debt service payments; (iv) a
detailed estimate of the projected reimbursable expenses with respect to each
type of expense expected to be incurred for such year; (v) a statement as to
the projected balances of any reserves with respect to the Company Property as
of the first day of the forthcoming year; (vi) a statement as to the projected
additions to or disbursements from such reserves for the forthcoming Fiscal
Year; (vii) an estimate of the projected cash flow available for distribution
from such Company Property; (viii) a detailed description of the renovations or
other capital improvements, if any, proposed to be undertaken with respect to
the during the forthcoming Fiscal Year; (ix) an estimate of the total costs of
the renovations or other capital improvements, if any, to be undertaken with
respect to the Company Property during the forthcoming Fiscal Year; (x) a list
of each space for which the lease then in effect will expire during the
forthcoming eighteen (18) month period, and a description of the proposed terms
and conditions for leasing each such vacant space for the forthcoming Fiscal
Year, including, without limitation, a calculation of net effective rent for
each such vacant space, and projected costs of tenant improvements and tenant
allowances for each such vacant space (collectively, the “Leasing Guidelines”);
(xi) a description of the terms and conditions proposed with respect to
material contracts relating to the Company Property for the forthcoming Fiscal
Year; (xii) a description of the minimum insurance coverage to be maintained
with respect to the Company Property for the forthcoming Fiscal Year; and
(xiii) and such other information as may be reasonably requested by the
Board.  In addition, the Officers shall
provide to the Board such other financial data and other information as may be
reasonably requested by the Board.  All
Annual Operating Budgets and other reports prepared pursuant to this Section
6.8 shall be prepared in accordance with GAAP unless otherwise requested by the
Board.


 


Section
6.9                                      Reporting Requirements.  The
Officers shall prepare and deliver, or cause to be prepared and delivered, to
the Board and the Members the following financial reports and tax information:


 


(A)                              Within seven (7) Business Days after the end
of each month, prepare and deliver to the Board and the Members such monthly
reports with respect to the Property and Company as the Board requests;


 


(B)                                Within thirty (30) days after the end of each
fiscal quarter, prepare and deliver to the Board and the Members such quarterly
reports with respect to the Property and Company as the Board requests;


 


35





















 


(C)                                Within forty-five (45) days of the end of the
Fiscal Year, deliver to the Board and the Members the audited financial reports
of the Company for the Fiscal Year, audited by the independent auditors of the
Company engaged by the Board;


 


(D)                               Within five (5) Business Days of the
occurrence of such a default, give notice to the Board and the Members of (i)
any default under any financing or breach of or default under any other
material agreement of which the Company is a party, and (ii) any default in the
payment of property taxes with respect to a Company Property, or any matter
which could result in a substantial and material loss (i.e., greater than
$250,000) to the Company; and


 


(E)                                 Promptly deliver to the Board and the Members
such additional information regarding the Company as the Board and the Members
may reasonably request from time to time.


 


All of the above reports,
balance sheets or other financial statements shall be prepared in accordance
with GAAP (except for tax reporting information to the extent that such tax
reporting information is different from GAAP.) 
In preparing such reports, or causing such reports to be prepared, the
Officer shall apply the methodology, normally used with respect to Industrial Property
owned by the Company.


 


Section
6.10                                Right of First Offer with respect to Company
Property.  Before the Company sells or otherwise
disposes of any Company Property (an “Offered Property”) to any Person, the
Company shall notify (the “Sale Notice”) CenterPoint in writing of the proposed
sale and of the terms and conditions of such sale (including the price at which
the Company is seeking to sell the Offered Property and such other terms and
conditions of such proposed sale as are reasonably required for CenterPoint to
make its election to purchase the Offered Property).  If CenterPoint shall at that time not be in
Default, CenterPoint shall thereafter have thirty (30) days (such period the “Offer
Period”) to notify the Board in writing of its election to acquire the Company
Property on the terms of the Sale Notice; provided, however, CenterPoint shall
have such right to receive a Sale Notice and acquire the Offered Property only
if the members of the Board appointed by CenterPoint shall not have supported
the decision to sell or otherwise dispose of the Offered Property.  Should CenterPoint fail to notify the Board
in writing of its election within such thirty (30) day period, it shall be
deemed to have elected not to purchase the Offered Property.  Upon notice to the Board of CenterPoint’s
election not to purchase the Offered Property or the expiration of the Offer
Period, the Company shall thereafter use reasonable efforts to sell the Offered
Property on the terms and subject to the conditions set forth in the Sale
Notice; provided, however, that should (i) the price for the sale of the
Offered Property be reduced by more than five percent (5%) below the price set
forth in the Sale Notice, or (ii) a period of six (6) months after the date of
delivery of the Sale Notice expire without a sale of the Offered Property,
CenterPoint shall have its right to purchase the Offered Property reinstated in
accordance with the procedure set forth in this Section 6.10.  CenterPoint shall have the right to designate
an Affiliate, or one of its members, as the grantee in any conveyance by the
Company of an Offered Property which the Member has elected to acquire pursuant
to this Section 6.10.


 


ARTICLE VII


EXCULPATION
AND INDEMNIFICATION


 


Section
7.1                                      Performance of Duties; No Liability of
Officers.  No Member shall have any duty to the Company
or any Member of the Company except as expressly set forth herein or in other
written agreements. No Member, member of the Board or Officer of the Company
shall be liable to the Company or to any Member for any loss or damage
sustained by the Company or to any Member, unless the loss or damage shall have
been the result of gross negligence, fraud or intentional misconduct by the
Member, member of the Board or Officer in question.  In performing his or her duties, each such
Person shall be entitled to rely in good faith on the provisions of this
Agreement and on information, opinions, reports or


 


36





















 


statements (including
financial statements and information, opinions, reports or statements as to the
value or amount of the assets, liabilities, profits or losses of the Company or
any facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid) of the following other Persons
or groups: one or more Officers of the Company, any attorney, independent
accountant, appraiser or other expert or professional employed or engaged by or
on behalf of the Company or the Board; or any other Person who has been
selected with reasonable care by or on behalf of the Company, or the Board in
each case as to matters which such relying Person reasonably believes to be
within such other Person’s competence. The preceding sentence shall in no way
limit any Person’s right to rely on information to the extent provided in
Section 18-406 of the Act. No Member, member of the Board or Officer of the
Company shall be personally liable under any judgment of a court, or in any
other manner, for any debt, obligation or liability of the Company, whether
that liability or obligation arises in contract, tort or otherwise, solely by
reason of being a Member, member of the Board or Officer of the Company or any
combination of the foregoing.


 


Section
7.2                                      Confidential Information.  Without
limiting the applicability of any other agreement to which any Member may be
subject, no Member or member of the Board shall, directly or indirectly
disclose either during his, her or its association or employment with the
Company or thereafter, any Confidential Information of which such Member is or
becomes aware. Each Member and member of the Board in possession of
Confidential Information shall take all appropriate steps to safeguard such
information and to protect it against disclosure, misuse, espionage, loss and
theft.  Notwithstanding the above, a
Member or member of the Board may disclose Confidential Information to the
extent (i) the disclosure is necessary for the Member, member of the Board
and/or the Company’s agents, representatives, and advisors to fulfill their
duties to the Company pursuant to this Agreement and/or other written
agreements, (ii) the disclosure is required by law or a court order, (iii) the
disclosure is necessary to comply with the rules of any regulatory body,
including any stock exchange upon which the securities of a Member or an
Affiliate of a Member are listed, (iv) the disclosure is made to any officer,
employee or advisor of a Member or an Affiliate, or (v) to the extent necessary
to enforce rights hereunder.


 


Section
7.3                                      Transactions Between the Company and the
Members.  Notwithstanding that it may constitute a
conflict of interest, the Members, the members of the Board or their Affiliates
may engage in any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service with the
Company) so long as such transaction is at arm’s length and approved by a
majority of the members the Board who are not selected by the Member involved
in the proposed transaction.


 


Section
7.4                                      Right to Indemnification. 
Subject to the limitations and conditions provided in this Article VII,
each Person who was or is made a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or arbitrative
(hereinafter, a “Proceeding”), or any appeal in such a Proceeding or any
inquiry or investigation that could lead to such a Proceeding, by reason of the
fact that such Person, or a Person of which such Person is the legal
representative, is or was a Member, a member of the Board or Officer shall be
indemnified by the Company to the fullest extent permitted by applicable law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment) against judgments, penalties (including excise
and similar taxes and punitive damages), fines, settlements and reasonable
expenses (including, without limitation, reasonable attorneys’ and experts’
fees) actually incurred by such Person in connection with such Proceeding,
appeal, inquiry or investigation, unless such loss or damage shall have been
the result of gross negligence, fraud or


 


37





















 


intentional misconduct by
such Person, in which case such indemnification shall not cover such loss or
damage to the extent resulting from such gross negligence, fraud or intentional
misconduct.  Indemnification under this
Article VII shall continue as to a Person who has ceased to serve in the
capacity which initially entitled such Person to indemnity hereunder.  The rights granted pursuant to this Article
VII shall be deemed contract rights, and no amendment, modification or repeal
of this Article VII shall have the effect of limiting or denying any such
rights with respect to actions taken or Proceedings, appeals, inquiries or
investigations arising prior to any amendment, modification or repeal.


 


Section
7.5                                      Advance Payment.  The
right to indemnification conferred in this Article VII shall include the right
to be paid or reimbursed by the Company the reasonable expenses incurred by a
Person (other than an Officer of the Company or any of its Subsidiaries thereof
in respect of claims by the Company or any of its Subsidiaries against such
Officer relating to the matter set forth in Section 7.1) entitled to be
indemnified under Section 7.4 who was, is or is threatened to be made a named
defendant or respondent in a Proceeding in advance of the final disposition of
the Proceeding and without any determination as to the Person’s ultimate
entitlement to indemnification; provided, however, that the payment of such
expenses incurred by any such Person in advance of the final disposition of a
Proceeding shall be made only upon delivery to the Company of a written
affirmation by such Person of his or her good faith belief that he has met the
standard of conduct necessary for indemnification under Article VII and a
written undertaking, by or on behalf of such Person, to repay all amounts so
advanced if it shall ultimately be determined that such indemnified Person is
not entitled to be indemnified under this Article VII or otherwise.


 


Section
7.6                                      Indemnification of Agents.  The
Company, at the direction of the Board, may indemnify and advance expenses to
an agent of the Company to the same extent and subject to the same conditions
under which it may indemnify and advance expenses under Sections 7.4 and 7.5.


 


Section
7.7                                      Appearance as a Witness. 
Notwithstanding any other provision of this Article VII, the Company may
pay or reimburse reasonable out-of-pocket expenses incurred by an Officer or
agent in connection with his or her appearance as a witness or other
participation in a Proceeding at a time when he or she is not a named defendant
or respondent in the Proceeding.


 


Section
7.8                                      Nonexclusivity of Rights.  The
right to indemnification and the advancement and payment of expenses conferred
in this Article VII shall not be exclusive of any other right that a Member,
member of the Board, Officer or other Person indemnified pursuant to this
Article VII may have or hereafter acquire under any law (common or statutory)
or provision of this Agreement.


 


Section
7.9                                      Insurance.  The Company shall obtain and
maintain, at its expense, insurance to protect itself and any Member, member of
the Board and Officer against any expense, liability or loss arising from such
status and activity, whether or not the Company would have the power to
indemnify such Person against such expense, liability or loss under this
Article VII.  Further, the Company shall
obtain and maintain, at its expense, insurance to protect itself and any
Member, member of the Board, Officer or agent of the Company who is or was
serving at the request of the Company as a manager, representative, director,
officer, partner, venturer, proprietor, trustee, agent or similar functionary
of another foreign or domestic limited liability company, corporation, Company,
sole proprietorship, trust or other enterprise against any expense, liability
or loss, whether or not the Company would have the power to indemnify such
Person against such expense, liability or loss under this Article VII.  The Company shall not be required to provide
the insurance described in this Section 7.9 for any Person otherwise covered by
reasonably similar insurance pursuant to policies maintained by a Member.


 


Section
7.10                                Savings Clause.  If
this Article VII or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify and hold harmless each Person indemnified pursuant to this Article
VII as to costs, charges and expenses


 


38





















 


(including reasonable
attorneys’ fees), judgments, fines and amounts paid in settlement with respect
to any such Proceeding, appeal, inquiry or investigation to the full extent
permitted by any applicable portion of this Article VII that shall not have
been invalidated and to the fullest extent permitted by applicable law.


 


Section
7.11                                Limited Liability. 
Except as otherwise provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and no Member, member of
the Board or Officer of the Company shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being a
Member, member of the Board or Officer of the Company.  Neither the Members nor any member of the
Board shall be required to lend any funds to the Company.  Each of the Members shall only be liable to
make payment of its respective Member Commitment as and when due hereunder and
other payments as expressly provided in this Agreement.  If and to the extent a Member’s Member
Commitment shall be fully paid, such Member shall not, except as required by
the express provisions of the Act regarding repayment of sums wrongfully
distributed to Members, be required to make any further contributions.  No Member in his or her capacity as a Member
shall have any power to represent, act for, sign for or bind the members of the
Board or the Company, and the Members hereby consent to the exercise by the
Board and Officers of the Company of the powers conferred on them by law and
this Agreement.


 


ARTICLE VIII


TAXES


 


Section
8.1                                      Tax Returns.  The President shall cause to
be prepared and filed all necessary federal and state income tax returns for
the Company, and shall make any elections and filings it may deem appropriate
and in the best interests of the Members. 
Each Member shall furnish to the Company all pertinent information in
its possession relating to Company operations that is necessary to enable the
Company’s income tax returns to be prepared and filed.  The Company shall furnish all pertinent
information to the Members that is necessary to determine amounts includable on
their tax returns with respect to the Company (including Schedule K-1) not
later than seventy five (75) days after the end of the Taxable Year.


 


Section
8.2                                      Tax Matters Partner.   The
Board shall designate any Member to serve as a tax matters partner (subject to
replacement) as and when required pursuant to Section 6231(a)(7) of the Code
(the “Tax Matters Partner”), and such Tax Matters Partner shall also be the “notice
partner” within the meaning of Section 6223 of the Code.  The Tax Matters Partner may, in its sole
discretion, make or revoke any election under the Code or the Treasury
Regulations issued thereunder (including for this purpose any new or amended
Treasury Regulations issued after the Formation Date).  The Tax Matters Partner is authorized to
represent the Company before the Internal Revenue Service and any other
governmental agency with jurisdiction, and to sign such consents and to enter
into settlements and other agreements with such agencies as the Board deems
necessary or advisable.  Promptly
following the written request of the Tax Matters Partner, the Company shall, to
the fullest extent permitted by law, reimburse and indemnify the Tax Matters
Partner for all reasonable expenses, including reasonable legal and accounting
fees, claims, liabilities, losses and damages incurred by the Tax Matters
Partner in connection with any administrative or judicial proceeding (i) with
respect to the tax liability of the Company and/or (ii) with respect to the tax
liability of the Members in connection with the operations of the Company.  The provisions of this Section 8.2 shall
survive the termination of the Company or the termination of any Member’s
interest in the Company and shall remain binding on the Members for as long a
period of time as is necessary to resolve with the Internal Revenue Service any
and all matters regarding the federal income taxation of the Company or the
Members.


 


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Section
8.3                                      Reserves.  The Board may from time to
time establish such reasonable cash reserves as it shall reasonably determine.


 


ARTICLE IX


TRANSFERS
AND OTHER EVENTS


 


Section
9.1                                      Transfer of Interest.  
Except as provided in this Article IX, no Member shall have the right to
sell, assign, transfer, pledge, encumber, hypothecate or otherwise dispose of,
whether voluntarily or involuntarily or by operation of law, all or any portion
of its, his or her Membership Interest (a “Transfer”) in the Company to any
Person (an “Assignee”) without the prior Approval of the Board.


 


Section
9.2                                      Permitted Transfer. 
Subject to the conditions and restrictions of Sections 9.3 and 9.4, the
Approval of the Board shall not be required for any Transfer by any Member of
all or any portion of its Membership Interests to (i) any Affiliate (provided
that in the event of a Transfer to an Affiliate by JF US, such Affiliate shall
not be a Person who is primarily engaged in the business of acquiring,
developing, owning and/or leasing Industrial Property) of such Member, unless the
Transferring Member (as defined below) seeks to be released or in any manner
avoid further obligations to fund the unfunded portion of its Member Commitment
as a result of such Transfer, or (ii) another Member pursuant to the terms and
conditions provided in this Agreement.


 


Section
9.3                                      Assignments Generally; Substituted Member. 
Without limiting the provisions of Sections 9.1 through 9.2, a Transfer
shall be valid hereunder only if:


 


(A)                              the Transferring Member and the Assignee each
execute and deliver to the Board such documents and instruments of conveyance
as may be reasonably requested by the Board to effect such Transfer and to
confirm the agreement of the Assignee to be bound by the provisions of this
Agreement;


 


(B)                                the Transferring Member and Assignee provide
to the Board the Assignee’s taxpayer identification number and any other
information reasonably necessary to permit the Company to file all required
federal and state tax returns and other legally required information statements
or returns.  Without limiting the
generality of the foregoing, the Company shall not be required to make any
distribution otherwise provided for in this Agreement with respect to any
interest Transferred until the Board has received such information;


 


(C)                                the Transferring Member furnishes to the
Board (unless waived by the Board) an opinion of counsel, which counsel and
opinion shall be reasonably satisfactory to the Board, that (i) the Transfer
will not cause the Company to be deemed to be an “investment company” under the
Investment Company Act of 1940, as amended, (ii) the Transfer will not cause
the Company to be taxed as a corporation pursuant to Section 7704 of the Code
and (iii) either the interest Transferred has been registered under the
Securities Act and any applicable state securities laws or the Transfer is
exempt from all applicable registration requirements and will not violate any
applicable laws regulating the Transfer of securities; and


 


(D)                               the Transferring Member reimburses the
Company for all costs and expenses that the Company reasonably incurs in
connection with the Transfer.


 


40





















 


Section
9.4                                      Rights and Obligations of Assignees and
Transferring Members.


 


(A)                              A Transfer by a Member or other Person shall
not itself dissolve the Company or entitle the Assignee to become a Member or
exercise any rights of a Member.


 


(B)                                A Transfer by a Member shall eliminate the
Member’s power and right to vote (in proportion to the extent of the interest
Transferred) on any matter submitted to the Members, and, for voting purposes,
such interest shall not be counted as outstanding in proportion to the extent
of the interest Transferred.  A Transfer
shall not otherwise eliminate the Member’s entitlement to any rights associated
with the Member’s remaining interest, including, without limitation, rights to
information, and shall not cause the Member to be released from any liability
to the Company solely as a result of the Transfer.


 


(C)                                An Assignee that is not admitted as a Member
pursuant to Sections 9.3 and 9.4 shall be entitled only to the Economic
Interest with respect to the Transferred Interest and shall have no other
rights (including, without limitation, rights to any information or accounting
of the affairs of the Company or to inspect the books or records of the
Company) with respect to the Transferred Interest.  The Assignee shall nevertheless be subject to
all of the obligations applicable to a Member under this Article IX.  If the Assignee becomes a Member, the voting
and other rights associated with the interest held by the Assignee shall be
restored and be held by the Member along with all other rights with respect to
the Transferred Interest.  The Assignee
shall have no liability as a Member solely as a result of the Transfer.


 


Section
9.5                                      Effect of Admission of Member on Transferring
Member and Company.  Notwithstanding the admission of an Assignee
as a Member, the Transferring Member shall not be released from any obligations
to the Company existing as of the date of the Transfer (other than obligations
of the Transferring Member to make future capital contributions), but such
admission shall cause Transferring Member to cease to be a Member with respect
to the Transferred Interest when the Assignee becomes a Member.  In any such case, the admission of the
Assignee as a Member shall constitute the requisite consent of the Members to
continue the business of the Company notwithstanding that such admission will
cause the termination of the membership of the Transferring Member with respect
to the Transferred Interest.


 


Section
9.6                                      Distributions and Allocations Regarding
Transferred Interests.  Upon any Transfer during any Fiscal Year of
the Company made in compliance with the provisions of this Article IX, Profits,
Losses, each item thereof and all other items attributable to such interest for
such Fiscal Year shall be divided and allocated between the Transferring Member
and the Assignee by taking into account their varying interests during such
Fiscal Year, using any conventions permitted by law and selected by the
Board.  All distributions on or before
the date of such Transfer shall be made to the Transferring Member and all
distributions thereafter shall be made to the Assignee.  Solely for purposes of making such allocations
and distributions, the Company shall recognize such Transfer not later than the
end of the calendar month during which it is given notice of such Transfer;
provided that, if the Company is given notice of a Transfer at least ten (10)
Business Days prior to the Transfer, the Company shall recognize such Transfer
as the date of such Transfer, and provided, further, that, if the Company does
not receive a notice stating the date such interest was Transferred and such
other information as the Board may reasonably require within thirty (30) days
after the end of the Fiscal Year during which the Transfer occurs, then all
such items shall be allocated, and all distributions shall be made, to the
Member that, according to the books and records of the Company, was the owner
of the interest on the last day of the Fiscal Year during which the Transfer
occurs.  Neither the Company nor the
Board shall incur any liability for making allocations and distributions in
accordance with the provisions of this Section 9.7, whether or not the Company
or the Board has knowledge of any Transfer of any interest.


 


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Section
9.7                                      Required Amendments; Continuation.  If
and to the extent any Assignee is admitted as a Member pursuant to Section 9.6,
this Agreement shall be amended to admit such Assignee as a Member and to
reflect the elimination of the Transferring Member (or the reduction of such
Membership Interest) and (if and to the extent then required by the Act) a
certificate of amendment to the Certificate reflecting such admission and
elimination (or reduction) shall be filed in accordance with the Act.  The admission of any substitute Member
pursuant to this Article IX shall be deemed effective on the effective date of
such amendment to this Agreement.


 


Section
9.8                                      Resignation.  No Member shall have the right
to resign or withdraw as a Member without the prior written Approval of the
Board, which may be given or withheld in its sole and absolute discretion. Any
Member that resigns without the Approval of the Board in contravention of this
Section 9.8 shall be liable to the Company for all damages (including all lost
profits and special, indirect and consequential damages) directly or indirectly
caused by the resignation of such Member, and such Member shall be entitled to
receive the fair value of his, her or its Membership Interest as of the date of
his, her or its resignation (or, if less, the fair value of his, her or its
interest as of the winding-up of the Company), as conclusively determined by
the Board, only following the occurrence of the winding-up of the Company.


 


Section
9.9                                      No Appraisal Rights.  No
Member shall be entitled to any appraisal rights with respect to such Member’s
Membership Interest, whether individually or as part of any class or group of
Members, in the event of a merger, consolidation, or other transaction
involving the Company or its securities unless such rights are expressly
provided herein or by the agreement of merger, agreement of consolidation or
other document effectuating such transaction.


 


Section
9.10                                Void Assignment.  Any
Transfer by any Member in contravention of this Agreement shall be void and
ineffectual and shall not bind or be recognized by the Company or any other
party.  In the event of any Transfer in
contravention of this Agreement, the purported transferee shall have no right
to any profits, losses or distributions of the Company or any other rights of a
Member.


 


Section
9.11                                Purchase Rights.  JF
US shall have the right to purchase CenterPoint’s Membership Interests, and
CenterPoint shall have the right to cause JF US to purchase CenterPoint’s
Membership Interests, following the occurrence of any of the following (each, a
“Sales Event”):


 


(A)                              JF US shall have the right to purchase
CenterPoint’s Membership Interest if:


 


(i)                                     CenterPoint has committed a Member Default as
described in Section 3.6 of this Agreement and such Member Default has not been
cured by the end of the cure period described in Section 3.6(E);


 


(ii)                                  the Management Agreement
has been terminated by reason of a default by CenterPoint under such Agreement;
or


 


(iii)                               CenterPoint has suffered a change of control
(which shall be deemed to occur if any Person becomes the beneficial owner of
greater than fifty percent (50%) of the equity securities of CenterPoint other
than by a Person or Persons becoming such a beneficial owner(s) from the
purchase of the equity securities of CenterPoint in the public markets).


 


(B)                                CenterPoint shall have the right to cause
JF US to purchase CenterPoint’s Membership Interest if:


 


42





















 


(i)                                     JF US has committed a Member Default as
described in Section 3.6 of this Agreement and such Member Default has not been
cured by the end of the cure period described in Section 3.6(E);


 


(ii)                                  JF US has suffered a JF US Change of Control;
or


 


(iii)                               the Management Agreement has been terminated
by the Company, a wholly-owned Subsidiary of the Company or the lender under
the Credit Facility (or any replacement credit facility, if applicable), as the
case may be.


 


Section
9.12                                Sales Event Caused by CenterPoint.  In
the event of a Sales Event described in Section 9.11(A), JF US may at its
election purchase CenterPoint’s Membership Interest, or cause the Company to
redeem CenterPoint’s Membership Interest, in accordance with the procedure set
forth in Section 10.2.  Upon the purchase
by JF US, or upon the redemption by the Company, of CenterPoint’s Membership
Interest pursuant to this Section 9.12, the Management Agreement shall be
deemed terminated by the Company pursuant to the terms thereof and the Company’s
rights with respect to the Right of First Offer Agreement shall terminate.


 


Section
9.13                                Sales Event Caused by JF US.  In
the event of a Sales Event described in Section 9.11(B)(i) or (iii),
CenterPoint may require JF US to purchase CenterPoint’s Membership Interest, or
cause the Company to redeem CenterPoint’s Membership Interest, in accordance
with the procedure set forth in Section 10.2. 
In the event of a Sales Event described in Section 9.11(B)(ii),
CenterPoint may either (x) require JF US to purchase CenterPoint’s Membership
Interest, or cause the Company to redeem CenterPoint’s Membership Interest, in
accordance with the procedure set forth in Section 10.2, or (y) elect to
initiate the Buy-Sell Procedure set forth in Section 9.14 as the Initiating
Member.  In the event of the purchase by
JF US, or upon the redemption by the Company, of CenterPoint’s Membership
Interest pursuant to this Section 9.13, the Management Agreement shall be
deemed terminated by the Company pursuant to the terms thereof and the Company’s
rights with respect to the Right of First Offer Agreement shall terminate.


 


Section 9.14                                Buy-Sell Procedure.  In
the event that CenterPoint shall have the right, under Section 9.13, to
initiate the Buy-Sell Procedure described in this Section 9.14, the following
procedure shall be followed.  The Member
which exercises its right to initiate the Buy-Sell Procedure (the “Initiating
Member”) shall have the right to require the other Member (the “Responding
Member”) to elect either to purchase the Membership Interest of the Initiating
Member, or to sell the Responding Member’s interest in the Company to the
Initiating Member.  The Initiating Member
shall give written notice to the Responding Member of the amount of proceeds
from a sale of all of the assets of the Company which the Initiating Member
reasonably believes would be available for distribution from the Company to the
Members if the business of the Company were sold in its entirety as a going
concern, and giving the Responding Member the obligation to elect either to
purchase the Initiating Member’s interest in the Company or to sell its own
interest in the Company, in either case based on the amount specified in the
notice.  If the Responding Member shall
fail to respond within a thirty (30) day period, it shall be deemed to have
elected to sell its Membership Interest for the consideration and on the terms
set forth in the notice.  If the
Responding Member shall elect (or be deemed to have elected) to sell its
Membership Interest, or if the Responding Member shall elect to purchase the
Membership Interest of the Initiating Member, then the purchase and sale of the
Membership Interest shall occur on a date selected by the purchasing Member,
but no earlier than thirty (30) days after the date of the notice and no later
than sixty (60) days.  The purchase price
shall be paid entirely in cash at the closing, and the purchaser’s rights to
purchase the Membership Interest may not be assigned to any other party.


 


43





















 


Section
9.15                                Indemnification by Assignee.  An
Assignee shall, as of and after the date of the Transfer of the Transferred
Interest, indemnify and hold harmless the Transferring Member and its
Affiliates from any and all liabilities, losses, damages, costs, causes of
action, liens, indebtedness or claims (collectively, “Claims”) arising out of
or relating to the Company or the Transferred Interest that the Transferring
Member may suffer or incur as a result of any event that may occur after the
date of the Transfer of the Transferred Interest, except for Claims arising as
a result of the gross negligence, fraud or intentional misconduct of the
Transferring Member.  Notwithstanding any
Transfer of Transferred Interest, a Transferring Member shall continue to be
entitled to indemnification rights set forth in this Agreement, including,
without limitation, those set forth in Section 7.4, with respect to Claims arising
out of or relating to Transferring Member’s period of ownership of the
Transferred Interest.


 


ARTICLE
X


DISSOLUTION, LIQUIDATION AND TERMINATION


 


Section
10.1                                Dissolution.


 


(A)                              The Company shall be dissolved, and except as
otherwise provided in this Article X, its affairs shall be wound up on the
first to occur of the following:


 


(i)                                     the Approval of the Board;


 


(ii)                                  the entry of a decree of judicial dissolution
of the Company under Section 18-802 of the Act; or


 


(iii)                               (y) in the event the Members shall not
have negotiated an extension of this Agreement pursuant to Section 2.4, the
Termination Date, or (z) in the event the Members shall have negotiated an
extension of this Agreement pursuant to Section 2.4, such date that the Members
shall have agreed as the new termination date of this Agreement.


 


(B)                                The death, retirement, resignation,
expulsion, incapacity, bankruptcy or dissolution of a Member, or the occurrence
of any other event that terminates the continued membership of a Member in the
Company, shall not cause a dissolution of the Company, and the Company shall
continue in existence subject to the terms and conditions of this Agreement.


 


Section
10.2                                CenterPoint Election upon Termination.  Upon
the occurrence of any of the events described in Section 10.1(A), CenterPoint
shall sell its Membership Interest or have its Membership Interest redeemed,
and JF US shall purchase or cause the Company to redeem CenterPoint’s Membership
Interest, as set forth in this Section 10.2.


 


(A)                              CenterPoint shall sell its Membership
Interest or have its Membership Interest redeemed at a price equal to the
greater of:


 


(i)                                     the aggregate Fair Market Value of
CenterPoint’s Capital Contributions to the Company with respect to the
acquisition of Property by the Company pursuant to the Purchase Agreement, the
Right of First Offer Agreement or otherwise, determined as of the date of such
Capital Contributions, or


 


(ii)                                  the Fair Market Value of CenterPoint’s
Membership Interest in the Company, determined by the appraisal process
described in Section 10.8.


 


44





















 


(B)                                CenterPoint shall, within thirty (30) days following the occurrence of
any of the events described in Section 10.1(A), give written notice of its
proposed price determined pursuant to this Section 10.2(A), and the parties
shall have thirty (30) days
thereafter in which to negotiate a purchase price for CenterPoint’s Membership
Interest.  If the parties are unable to
agree upon a purchase price and (a) the disagreement involves subsection (i),
then the disagreement shall be resolved by the Company’s auditors, or (b) if
the disagreement involves subsection (ii), then the Valuation Procedure shall
be deemed to be initiated by CenterPoint at the close of such thirty (30) day period.  Upon resolution of the purchase price, JF US
shall, within thirty (30) days
from the date of resolution of the purchase price amount, (x) pay CenterPoint
the full amount of such purchase price, or cause the Company to redeem
CenterPoint’s Membership Interest by distributing the full amount of such
purchase price to CenterPoint in complete liquidation of its Membership
Interest, unless (y) JF US has notified CenterPoint, within the thirty (30) day
period following receipt of CenterPoint’s notice containing CenterPoint’s
proposed purchase price, that JF US intends to cause the Company to sell one or
more of the Properties of the Company as necessary to redeem CenterPoint’s
Membership Interest in full, in which case CenterPoint’s entire Membership
Interest shall be redeemed within one hundred and eighty (180) days of receipt
of CenterPoint’s notice containing CenterPoint’s proposed purchase price.


 


(C)                                Notwithstanding Section 10.2(B)(y), in the
event that JF US notifies CenterPoint that JF US intends to cause the Company
to sell one or more of the Properties of the Company as necessary to redeem
CenterPoint’s Membership Interest in full, CenterPoint shall have thirty (30)
days from the receipt of such notice to notify JF US and the Company that
CenterPoint has elected to receive one more Properties in redemption of its
Membership Interest in the Company.  If
CenterPoint makes the election to receive Property in redemption of its
Membership Interest, then CenterPoint shall identify one or more Properties owned
by the Company with a Fair Market Value estimated in good faith by CenterPoint
to be no less than ninety percent (90%) and no more than one hundred and ten
percent (110%) of the Fair Market Value of CenterPoint’s Membership
Interest.  Upon CenterPoint’s
identification of such Properties, the parties shall have thirty (30) days thereafter in which
to negotiate a purchase price for CenterPoint’s Membership Interest and the
value of such Properties, with any shortfall or excess of the value of the
Properties as compared with the value of CenterPoint’s Membership Interest to
be made up by a cash payment to or from CenterPoint, as the case may be, upon
consummation of the transaction.  If the
parties are unable to agree upon the terms of the redemption within such thirty
(30) day period, the Valuation Procedure shall be deemed to be initiated by
CenterPoint at the close of such thirty
(30) day period with respect to both its Membership Interest and the
designated Properties.  In either case,
the redemption of CenterPoint’s Membership Interest shall take place within
thirty (30) days of the determination of values, with the designated Properties
to be conveyed substantially in accordance with the manner such Properties were
conveyed by CenterPoint to the Company. 
In the case of a conveyance of Property to CenterPoint pursuant to this
Section 10.3(C), the Members shall cooperate to effectuate the release or
assumption of any liabilities, as the Members may agree, which may encumber the
Property to be conveyed in a timely manner.


 


(D)                               Upon the purchase by JF US of CenterPoint’s
Membership Interest pursuant to Section 10.2, the Management Agreement shall be
deemed terminated by the Company pursuant to the terms thereof and the Company’s
rights with respect to the Right of First Offer Agreement shall terminate.


 


Section
10.3                                Liquidation and Termination.  If
JF US does not purchase the Membership Interest of CenterPoint or cause the
Company to redeem the Membership Interest of CenterPoint pursuant to Section
10.2, then the Board shall act as liquidator or may appoint one or more
Officers as liquidator.  The liquidators
shall proceed diligently to wind up the affairs of the Company and make final


 


45





















 


distributions as provided
herein and in the Act.  The costs of
liquidation shall be borne as a Company expense.  Until final distribution, the liquidators
shall continue to operate the Company’s Properties with all of the power and
authority of the Board.  The steps to be
accomplished by the liquidators are as follows:


 


(A)                              As promptly as possible after dissolution and
again after final liquidation, the liquidator(s) shall cause a proper
accounting to be made by a recognized firm of certified public accountants of
the Company’s assets, liabilities and operations through the last day of the
calendar month in which the dissolution occurs or the final liquidation is
completed, as applicable.


 


(B)                                The liquidator(s) shall cause the notice
described in the Act to be mailed to each known creditor of and claimant
against the Company in the manner described thereunder.


 


(C)                                The liquidator(s) shall pay, satisfy or
discharge from Company funds all of the debts, liabilities and obligations of
the Company (including, without limitation, all expenses incurred in
liquidation) or otherwise make adequate provision for payment and discharge
thereof (including, without limitation, the establishment of a cash fund for
contingent liabilities in such amount and for such term as the liquidator may
reasonably determine).


 


(D)                               The balance, if any, of the Company’s
remaining assets shall be distributed to the Members in accordance with Article
V.  Distributions pursuant to this
Section 5.2 shall be made by the end of the Taxable Year of the Company during
which the liquidation occurs (or, if later, ninety (90) days after the date of
the liquidation).


 


The liquidator(s) shall
cause only cash, evidences of indebtedness and other securities to be
distributed in any liquidation.  The
distribution of cash and/ or property to a Member in accordance with the
provisions of this Section 10.3 constitutes a complete return to such Member of
its Capital Contributions and a complete distribution to the Member of its
interest in the Company and all the Company’s property and constitutes a
compromise to which all Members have consented within the meaning of the
Act.  The distribution of cash and/or
property to an Assignee who is not a Member in accordance with the provisions
of this Section 10.3 constitutes a complete distribution to such Assignee of
its interest in the Company and all the Company’s property and constitutes a
compromise to which all Members have consented within the meaning of the
Act.  To the extent that a Member returns
funds to the Company, it has no claim against any other Member for those funds.


 


Section
10.4                                Deemed Distribution and Recontribution. 
Notwithstanding any other provision of this Article X, in the event the
Company is “liquidated” within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(G), the Company’s assets shall not be liquidated, the Company’s
liabilities shall not be paid or discharged, and the Company’s affairs shall
not be wound up.  Instead, solely for
U.S. federal income tax purposes (a) the Company shall be deemed to have contributed
its assets to a newly-created limited liability company in exchange for such
company’s assumption of the Company’s liabilities and equity interests in such
new company, and immediately thereafter, the Company shall be deemed to have
distributed the new limited liability company equity interests to the Members
in accordance with their Capital Accounts.


 


Section
10.5                                Deficit Capital Accounts. 
Notwithstanding any custom or rule of law to the contrary, if any Member
has a deficit Capital Account balance upon dissolution of the Company, such
deficit shall not be an asset of the Company and such Member shall not be
obligated to contribute the amount of such deficit, or any portion thereof, to
the Company to bring the balance of such Member’s Capital Account to zero or
otherwise reduce such deficit balance.


 


46





















 


Section
10.6                                Cancellation of Certificate.  On
completion of the distribution of Company assets as provided herein, the
Company is terminated, and shall file a certificate of cancellation with the
Secretary of State of the State of Delaware, cancel any other filings made
pursuant to Section 2.1 and take such other actions as may be necessary to
terminate the Company.


 


Section
10.7                                Tax Deferral.  If so
requested in writing by JF US, the Company shall facilitate or engage in one or
more tax deferred exchanges pursuant to Section 1031 of the Code or other tax
deferred transaction in connection with the sale of any Company Property,
including as part of the winding-up and liquidation of the Company; provided,
however, any such tax deferred exchange shall not delay the closing of such
sale or increase the obligations of CenterPoint with respect thereto, and any
additional costs and expenses relating to any such tax deferred exchange shall
be borne solely by JF US.


 


Section 10.8                                Valuation Procedure.  The
Fair Market Value of the Property of the Company, all of the Company’s
Membership Interests or a Member’s Membership Interest in the Company shall be
determined in the good faith judgment of the Board.  In the event that a Member disagrees with the
determination by the Board of Fair Market Value of the Property of the Company,
all of the Company’s Membership Interests or a Member’s Membership Interest in
the Company for purposes of this Agreement, the following procedure shall be
used to determine such disputed Fair Market Value (which procedure shall also
be the general “Valuation Procedure” under this Agreement).  Within thirty (30) days of the Company’s receipt
of notice from such Member of its disagreement with the Board’s determination,
such Member and the other Member will jointly select an independent valuation
firm to determine Fair Market Value of the Property of the Company, all of the
Company’s Membership Interests or a Member’s Membership Interest in the
Company, as the case may be.  If the
parties are unable to agree upon the selection of a valuation firm within the
thirty (30) day period, then each party will select an independent valuation
firm.  The two (2) valuation firms so
selected shall each independently determine the disputed Fair Market Value
within sixty (60) days of their appointment. 
If either party fails to select an independent valuation firm within the
time required, or if a party’s valuation firm fails to deliver its valuation to
the Company within sixty (60) days after that valuation firm’s appointment,
then the Fair Market Value shall be the Fair Market Value determined by the
valuation firm timely selected by the other party, or by the valuation timely
delivered to the Company, as the case may be. 
If the difference between the two (2) valuation firms’ determination of
Fair Market Value does not exceed ten percent (10%) of the lower of the two (2)
valuations, the Fair Market Value shall be the average of the two (2)
valuations.  If the difference between
the two (2) valuation firms’ determination of Fair Market Value exceeds ten
percent (10%) of the lower of the two (2) valuations, then the two (2)
valuation firms shall select a third valuation firm within five (5) Business
Days after the two (2) valuation firms delivered their respective valuations to
the Company.  The third valuation firm
shall independently determine Fair Market Value.  The Fair Market Value as finally determined in
accordance with this section shall be binding and conclusive on all Members and
the Company.  The parties shall share
equally the fees and expenses of any valuation firm they jointly name and of
the valuation firm named by the two (2) valuation firms, if applicable.  Each party shall be responsible for the fees
and expenses of the valuation firm named solely by that party.


 


Section 10.9                                Offset of Master Lease Obligation.  Upon
the purchase by JF US of CenterPoint’s Membership Interest, or the redemption of
CenterPoint’s Membership Interest in the Company, pursuant to Sections 9.12,
9.13, 9.14 or 10.2 of this Agreement, the any amount of any remaining
obligation of CenterPoint to the Company pursuant to Section 3.3 of the Master
Lease Agreement (if any) shall be offset and reduce the purchase price or
redemption price otherwise payable to CenterPoint.


 


47





















 


ARTICLE XI


GENERAL
PROVISIONS


 


Section
11.1                                Offset.  Whenever the Company is
obligated to pay any sum to any Member, any amounts that such Member owes to
the Company may be deducted from that sum before payment; provided that, the
full amount that would otherwise be distributed as a Distribution to such
Member shall be treated as a Distribution to such Member for purposes of
adjusting such Member’s Capital Account pursuant to Section 4.1, followed by a
repayment by such Member to the Company in satisfaction of such obligation.


 


Section
11.2                                Waiver of Certain Rights.  Each
Member irrevocably waives any right it may have to demand any distributions or
withdrawal of property from the Company or to maintain any action for
dissolution (except pursuant to Section 18-802 of the Act) of the Company or
for partition of the property of the Company.


 


Section
11.3                                Indemnification and Reimbursement for
Payments on Behalf of a Member.  If the Company is obligated to pay any amount
to a governmental agency (or otherwise makes a payment) because of a Member’s
status or otherwise specifically attributable to a Member (including, without
limitation, federal, state or local withholding taxes imposed with respect to
any issuance of Membership Interests to a Member or any payments to a Member,
federal withholding taxes with respect to foreign Persons, state personal
property taxes, state personal property replacement taxes, state unincorporated
business taxes, etc.), then such Member (the “Indemnifying Member”) shall
indemnify the Company in full for the entire amount paid (including, without
limitation, any interest, penalties and expenses associated with such
payments).  At the option of the Board,
either:


 


(A)                              promptly upon notification of an obligation
to indemnify the Company, the Indemnifying Member shall make a cash payment to
the Company equal to the full amount to be indemnified (provided that the
amount paid shall not be treated as a Capital Contribution); or


 


(B)                                the Company shall reduce distributions that
would otherwise be made to the Indemnifying Member, until the Company has
recovered the amount to be indemnified (provided that the amount of such
reduction shall be deemed to have been distributed for all purposes of this
Agreement).


 


An Indemnifying Member’s
obligation to make contributions to the Company under this Section 11.3 shall
survive the termination, dissolution, liquidation and winding up of the Company
and, for purposes of this Section 11.3, the Company shall be treated as
continuing in existence.  The Company may
pursue and enforce all rights and remedies it may have against each
Indemnifying Member under this Section 11.3, including instituting a lawsuit to
collect such contribution with interest calculated at Prime Rate plus five
percentage points per annum (but not in excess of the highest rate per annum
permitted by law).


 


Section
11.4                                Notices.  Except as expressly set forth
to the contrary in this Agreement, all notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
must be in writing and shall be deemed delivered:  (i) upon delivery if delivered in person;
(ii) if mailed by deposit in the United States mail, addressed to the
recipient, postage paid, and registered or certified with return receipt
requested, or upon the date indicated in such return receipt; (iii) upon
transmission if sent via telecopier, facsimile machine or electronic mail, with
a confirmation copy sent via overnight mail or courier service, provided that
either confirmation of such transmission by responding transmission or
confirmation of such overnight delivery is received; or (iv) one (1) Business
Day after deposit with a national overnight courier provided that confirmation
of such overnight delivery is received. 
All notices, requests and consents to be sent to a Member must be sent to
or made at the


 


48





















 


address (or facsimile number) given for that Member
on Schedule 3.2, or such other address (or facsimile number) as that Member may
specify by notice to the other Members. Any notice, request or consent to the
Company or the Board must be given to the Board or, if appointed, the secretary
of the Company at the Company’s chief executive offices.  Whenever any notice is required to be given
by law or this Agreement, a written waiver thereof, signed by the Person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice.


 


Section
11.5                                Public Announcements.  No
Member shall make any public announcement or filing with respect to the
transactions provided for herein without the prior Approval of the Board,
unless such party has been advised by counsel such disclosure is required by
applicable law.  To the extent reasonably
feasible, any press release or other announcement or notice regarding the
transactions contemplated by this Agreement shall be made by the Board or any
other party designated by the Board.


 


Section
11.6                                Entire Agreement.  This
Agreement and other written agreements among the Members and their Affiliates
relating to the Company of even date herewith constitute the entire agreement
among the Members relating to the Company and supersedes all prior contracts or
agreements with respect to the Company, whether oral or written.


 


Section
11.7                                Effect of Waiver or Consent.  A
waiver or consent, express or implied, to or of any breach or default by any
Person in the performance by that Person of its obligations hereunder or with
respect to the Company is not a consent or waiver to or of any other breach or
default in the performance by that Person of the same or any other obligations
of that Person hereunder or with respect to the Company.  Failure on the part of a Person to complain
of any act of any Person or to declare any Person in default hereunder or with
respect to the Company, irrespective of how long that failure continues, does
not constitute a waiver by that Person of its rights with respect to that
default until the applicable statute-of-limitations period has run.


 


Section
11.8                                Amendment or Modification.  This
Agreement and any provision hereof may be amended or modified from time to time
only by a written instrument unanimously approved by all Members.  Notwithstanding the preceding sentence, the
Board may amend and modify the provisions of this Agreement (including Article
V) and Schedule 3.2 hereto to the extent necessary to reflect the admission or
substitution of any Member permitted under this Agreement.


 


Section
11.9                                Severability. 
Should any provision of this Agreement be held to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon each Member
with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. 
The Members further agree that any court or arbitrator is expressly
authorized to modify any such unenforceable provision of this Agreement in lieu
of severing such unenforceable provision from this Agreement in its entirety,
whether by rewriting the offending provision, deleting any or all of the
offending provision, adding additional language to this Agreement, or by making
such other modifications as it deems warranted to carry out the intent and
agreement of the Members as embodied herein to the maximum extent permitted by
law.  The Members expressly agree that
this Agreement as so modified shall be binding upon and enforceable against
each of them.  In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect under applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and if such provision or provisions are not modified as
provided above, this Agreement shall be construed as if such invalid, illegal
or unenforceable provisions had never been set forth herein.


 


49





















 


Section
11.10                          Successors and Assigns. 
Except as otherwise provided herein, this Agreement is binding on and
shall inure to the benefit of the parties hereto and their respective heirs,
legal representatives, administrators, executors, successors and permitted
assigns.


 


Section
11.11                          Further Assurances.  In
connection with this Agreement and the transactions contemplated hereby, each
Member shall execute and deliver any additional documents and instruments and
perform any additional acts that may be necessary or appropriate to effectuate
and perform the provisions of this Agreement and those transactions.


 


Section
11.12                          Notice to Members of Provisions.  By
executing this Agreement, each Member acknowledges that it has actual notice of
(a) all of the provisions hereof (including, without limitation, the
restrictions on the transfer set forth in Article IX) and (b) all of the provisions
of the Certificate.


 


Section
11.13                          Remedies.  The Company and the Members
shall be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement
(including costs of enforcement) and to exercise any and all other rights at
law or at equity existing in their favor. 
The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement (and thus
waive as defense that there is an adequate remedy at law), and that the Company
or any Member may in his, her or its sole discretion apply to any court of law
or equity of competent jurisdiction for specific performance or injunctive
relief (without posting a bond or other security) in order to enforce or
prevent any violation or threatened violation of the provisions of this
Agreement.


 


Section
11.14                          Third Parties. 
Nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any Person or entity, other than the parties to this
Agreement and their respective successors and permitted assigns, any rights or
remedies under or by reason of this Agreement.


 


Section
11.15                          Governing Law.  This
Agreement is governed by and shall be construed in accordance with the law of
the state of Delaware excluding any conflict-of-laws rule or principle that
might refer the governance or the construction of this agreement to the law of
another jurisdiction.  In the event of a
direct conflict between the provisions of this Agreement and any provision of
the Certificate or any mandatory provision of the Act, the applicable provision
of the Certificate or the Act shall control. 
If any provision of this Agreement or the application thereof to any
Person or circumstance is held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of that provision to other
Persons or circumstances is not affected thereby and that provision shall be
enforced to the greatest extent permitted by law.


 


Section
11.16                          WAIVER OF JURY TRIAL.  THE
PARTIES TO THIS AGREEMENT EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR
OTHERWISE.  THE PARTIES TO THIS AGREEMENT
EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


50





















 


Section
11.17                          Waiver of Certain Rights.  Each
Member irrevocably waives any right it may have to demand any distributions or
withdrawal of property from the Company or to maintain any action for
dissolution (except pursuant to Section 18-802 of the Act) of the Company or
for partition of the property of the Company.


 


Section
11.18                          Counterparts.  This
Agreement may be executed in multiple counterparts with the same effect as if
all signing parties had signed the same document.  All counterparts shall be construed together
and constitute the same instrument.


 


Section
11.19                          Descriptive Headings.  The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement.


 


Section
11.20                          Conflicts.  In the event of a direct
conflict between the provision of this Agreement and any provision of the
Certificate or any mandatory provision of the Act, the applicable provision of
the Certificate or the Act shall control. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Agreement in such jurisdiction or
affect the validity, legality or enforceability of any provision in any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.


 


Section
11.21                          Time of the Essence; Computation of Time.  Time
is of the essence for each and every provision of this Agreement.  Whenever the last day for the exercise of any
privilege or the discharge or any duty hereunder shall fall upon a day which is
not a Business Day, the party having such privilege or duty may exercise such
privilege or discharge such duty on the next succeeding day which is a Business
Day.


 


Section
11.22                          No Strict Construction.  The
parties hereto have participated jointly in the negotiation and drafting of
this Agreement.  In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.


 


Section
11.23                          Organizational Expenses; Acquisition Costs.  The
Company shall pay all fees and expenses incurred by or on behalf of the
Company, or shall reimburse any Member or Affiliate of a Member for such fees
and expenses, incurred in connection with the organization and formation of the
Company; provided that, such organization and formation expenses shall include
only the costs of forming the Company as a Delaware limited liability company
(including any costs or filing documents or amendments with the Delaware
Secretary of State), qualifying to do business in those jurisdictions in which
the Company will do business and other filings with governmental authorities,
but shall not include the costs incurred by the Members in negotiating this
Agreement or the legal relationship created hereby.  Acquisition costs associated with the
acquisition of the Property of the Company, whether under the Purchase
Agreement or otherwise, shall be considered acquisition costs or expenses as
those terms are used in this Agreement, including for purposes of the determination
of Member Commitments, Capital Calls, and Investment Base of the Property of
the Company; provided, however, that such acquisition costs shall be limited to
costs customarily incurred in connection with the acquisition of like real
estate, including costs of physical inspection, environmental reports,
appraisals, transfer taxes, due diligence costs, financing fees, legal fees and
other costs which are customarily capitalized in the cost of acquiring real
property, but not including the costs incurred by the Members in negotiating
this Agreement or the


 


51





















 


legal relationship created hereby or costs of JF US
or its Affiliates related any private placement or public offering of
securities to raise capital to invest in the Company.


 


Section 11.24                          Disclosure and Waiver of Conflict of Interest.  The Members hereby acknowledge and
agree that (a) Wildman, Harrold, Allen & Dixon LLP (“Wildman”) has
participated in the negotiations of this Agreement on JF US’s behalf and has
represented, currently represents and expects to represent in the future JF US
and its Affiliates; (b) Kirkland & Ellis LLP has participated in the
negotiations of this Agreement on CenterPoint’s behalf and has represented,
currently represents and expects to represent in the future CenterPoint and its
Affiliates; (c) the Company has agreed to retain Wildman as counsel in
connection with the Credit Facility, the Sale Agreement, the Master Lease
Agreement, the Purchase Agreement and the Right of First Offer Agreement and
other matters, and Wildman has advised the Members and the Officers that a
conflict of interest exists; (d) the Members, the Officers and the Company have
been informed and understand that the Illinois Code of Professional Responsibility,
which governs attorney conduct in Illinois, requires Wildman to disclose this
conflict and to obtain the Members’ and the Company’s consent in order for
Wildman to represent JF US in connection with this Agreement and the Company in
connection with the Credit Facility, the Sale Agreement, the Master Lease
Agreement, the Purchase Agreement and the Right of First Offer Agreement and
generally in the future; and (e) the Members acknowledge that they have been
advised of the conflict.  Accordingly, the
Members hereby consent to Wildman’s representations described above despite the
fact that Wildman will continue to represent JF US and its Affiliates in
connection with unrelated transactions. 
In addition, the Members hereby agree that (i) in the event of a dispute
between JF US or its Affiliates or the Company on the one part and CenterPoint
or its affiliates on the other part, CenterPoint will not take any action to
preclude Wildman from representing JF US or its Affiliates or the Company and
advocating positions adverse to CenterPoint, and (ii) Section 6.3(B)(xxiii)
shall not apply to the legal representation of CenterPoint by Wildman as
described in this Section 11.24.


 


52





















 


IN WITNESS
WHEREOF, the Members have executed this Agreement as of the date first set
forth above.


 


	
   

  	
  CENTERPOINT PROPERTIES
  TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
     Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  James N. Clewlow 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
     Chief
  Investment Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JF US INDUSTRIAL PROPERTY
  TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Adrian Harrington 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
     President
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Adrienne Parkinson 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
     Secretary

  	
   

  



 


53





















 


LIST
OF SCHEDULES AND EXHIBITS


 


TO
CENTERPOINT JAMES FIELDING, LLC OPERATING AGREEMENT


 


Schedule 3.2 – Members, Member Commitments and
Sharing Percentages


 


Exhibit 1 – Credit Facility Financing Proposal


 


Exhibit 2 — Form of Management Agreement


 


Exhibit 3 – Form of Master Lease Agreement


 


Exhibit 4 – Form of Purchase Agreement (w/out
Schedules)


 


Exhibit 5 – Form of Right of First Offer Agreement


 


Exhibit 6 – Form of Legal Opinion


 


54





















 


Limited
Liability Company Agreement


 


of


 


CENTERPOINT
JAMES FIELDING, LLC


a
Delaware Limited Liability Company


 


Dated
as of April 6, 2005


 


THE MEMBERSHIP INTERESTS
REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY OTHER APPLICABLE FEDERAL OR STATE SECURITIES LAWS.  SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED,
PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION
UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.


 


55





















 


TABLE
OF CONTENTS


 


	
  ARTICLE
  I DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  Section
  1.2

  	
  Construction

  	
   

  
	
   

  	
  Section
  1.3

  	
  Including

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II ORGANIZATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  2.1

  	
  Formation

  	
   

  
	
   

  	
  Section
  2.2

  	
  Company
  Name

  	
   

  
	
   

  	
  Section
  2.3

  	
  Certificate
  of Formation, Etc.

  	
   

  
	
   

  	
  Section
  2.4

  	
  Term
  of the Company

  	
   

  
	
   

  	
  Section
  2.5

  	
  Registered
  Office; Registered Agent; Principal Office; Other Offices

  	
   

  
	
   

  	
  Section
  2.6

  	
  Purposes

  	
   

  
	
   

  	
  Section
  2.7

  	
  Powers
  of the Company

  	
   

  
	
   

  	
  Section
  2.8

  	
  Board
  Authority

  	
   

  
	
   

  	
  Section
  2.9

  	
  Foreign
  Qualification

  	
   

  
	
   

  	
  Section
  2.10

  	
  No
  State-Law Partnership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III MEMBERSHIP AND CAPITAL CONTRIBUTIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  3.1

  	
  Membership
  Interests

  	
   

  
	
   

  	
  Section
  3.2

  	
  Members

  	
   

  
	
   

  	
  Section
  3.3

  	
  No
  Liability of Members

  	
   

  
	
   

  	
  Section
  3.4

  	
  Capital
  Contributions to Fund Obligations under Purchase Agreement

  	
   

  
	
   

  	
  Section
  3.5

  	
  Additional
  Capital Contributions

  	
   

  
	
   

  	
  Section
  3.6

  	
  Security
  for Member Defaults with Respect to the Purchase Agreement

  	
   

  
	
   

  	
  Section
  3.7

  	
  Other
  Activities

  	
   

  
	
   

  	
  Section
  3.8

  	
  Credit
  Facility

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV CAPITAL ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  4.1

  	
  Establishment
  and Determination of Capital Accounts

  	
   

  
	
   

  	
  Section
  4.2

  	
  Computation
  of Amounts

  	
   

  
	
   

  	
  Section
  4.3

  	
  Negative
  Capital Accounts

  	
   

  
	
   

  	
  Section
  4.4

  	
  Company
  Capital

  	
   

  
	
   

  	
  Section
  4.5

  	
  Adjustments
  to Book Value

  	
   

  
	
   

  	
  Section
  4.6

  	
  Compliance
  with Treasury Regulation Section 1.704-1(b)

  	
   

  
	
   

  	
  Section
  4.7

  	
  Transfer
  of Capital Accounts

  	
   

  



 


56





















 


	
  ARTICLE
  V DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  5.1

  	
  Generally

  	
   

  
	
   

  	
  Section
  5.2

  	
  Distributions
  of Distributable Cash

  	
   

  
	
   

  	
  Section
  5.3

  	
  Computation
  of Performance Return

  	
   

  
	
   

  	
  Section
  5.4

  	
  Final
  Payment of Performance Return

  	
   

  
	
   

  	
  Section
  5.5

  	
  Allocation
  of Profits and Losses

  	
   

  
	
   

  	
  Section
  5.6

  	
  Regulatory
  and Special Allocations

  	
   

  
	
   

  	
  Section
  5.7

  	
  Tax
  Allocations

  	
   

  
	
   

  	
  Section
  5.8

  	
  Section
  754 Election

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI MANAGEMENT POWER, RIGHTS AND DUTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  6.1

  	
  Management
  by the Board

  	
   

  
	
   

  	
  Section
  6.2

  	
  Officers

  	
   

  
	
   

  	
  Section
  6.3

  	
  Authority
  of Officers; Restrictions on Certain Actions

  	
   

  
	
   

  	
  Section
  6.4

  	
  Limitation
  on Authority of Members

  	
   

  
	
   

  	
  Section
  6.5

  	
  Meetings
  of and Voting by Members

  	
   

  
	
   

  	
  Section
  6.6

  	
  Power
  of Attorney

  	
   

  
	
   

  	
  Section
  6.7

  	
  Authorization
  of Certain Agreements

  	
   

  
	
   

  	
  Section
  6.8

  	
  Annual
  Operating Budget

  	
   

  
	
   

  	
  Section
  6.9

  	
  Reporting
  Requirements

  	
   

  
	
   

  	
  Section
  6.10

  	
  Right
  of First Offer with respect to Company Property

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII EXCULPATION AND INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.1

  	
  Performance
  of Duties; No Liability of Officers

  	
   

  
	
   

  	
  Section
  7.2

  	
  Confidential
  Information

  	
   

  
	
   

  	
  Section
  7.3

  	
  Transactions
  Between the Company and the Members

  	
   

  
	
   

  	
  Section
  7.4

  	
  Right
  to Indemnification

  	
   

  
	
   

  	
  Section
  7.5

  	
  Advance
  Payment

  	
   

  
	
   

  	
  Section
  7.6

  	
  Indemnification
  of Agents

  	
   

  
	
   

  	
  Section
  7.7

  	
  Appearance
  as a Witness

  	
   

  
	
   

  	
  Section
  7.8

  	
  Nonexclusivity
  of Rights

  	
   

  
	
   

  	
  Section
  7.9

  	
  Insurance

  	
   

  
	
   

  	
  Section
  7.10

  	
  Savings
  Clause

  	
   

  
	
   

  	
  Section
  7.11

  	
  Limited
  Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII TAXES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  8.1

  	
  Tax
  Returns

  	
   

  
	
   

  	
  Section
  8.2

  	
  Tax
  Matters Partner

  	
   

  
	
   

  	
  Section
  8.3

  	
  Reserves

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX TRANSFERS AND OTHER EVENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  9.1

  	
  Transfer
  of Interest

  	
   

  
	
   

  	
  Section
  9.2

  	
  Permitted
  Transfer

  	
   

  



 


57





















 


	
   

  	
  Section
  9.3

  	
  Assignments
  Generally; Substituted Member

  	
   

  
	
   

  	
  Section
  9.4

  	
  Rights
  and Obligations of Assignees and Transferring Members

  	
   

  
	
   

  	
  Section
  9.5

  	
  Effect
  of Admission of Member on Transferring Member and Company

  	
   

  
	
   

  	
  Section
  9.6

  	
  Distributions
  and Allocations Regarding Transferred Interests

  	
   

  
	
   

  	
  Section
  9.7

  	
  Required
  Amendments; Continuation

  	
   

  
	
   

  	
  Section
  9.8

  	
  Resignation

  	
   

  
	
   

  	
  Section
  9.9

  	
  No
  Appraisal Rights

  	
   

  
	
   

  	
  Section
  9.10

  	
  Void
  Assignment

  	
   

  
	
   

  	
  Section
  9.11

  	
  Purchase
  Rights

  	
   

  
	
   

  	
  Section
  9.12

  	
  Sales
  Event Caused by CenterPoint

  	
   

  
	
   

  	
  Section
  9.13

  	
  Sales
  Event Caused by JF US

  	
   

  
	
   

  	
  Section
  9.14

  	
  Buy-Sell
  Procedure

  	
   

  
	
   

  	
  Section
  9.15

  	
  Indemnification
  by Assignee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X DISSOLUTION, LIQUIDATION AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  10.1

  	
  Dissolution

  	
   

  
	
   

  	
  Section
  10.2

  	
  CenterPoint
  Election upon Termination

  	
   

  
	
   

  	
  Section
  10.3

  	
  Liquidation
  and Termination

  	
   

  
	
   

  	
  Section
  10.4

  	
  Deemed
  Distribution and Recontribution

  	
   

  
	
   

  	
  Section
  10.5

  	
  Deficit
  Capital Accounts

  	
   

  
	
   

  	
  Section
  10.6

  	
  Cancellation
  of Certificate

  	
   

  
	
   

  	
  Section
  10.7

  	
  Tax
  Deferral

  	
   

  
	
   

  	
  Section
  10.8

  	
  Valuation
  Procedure

  	
   

  
	
   

  	
  Section
  10.9

  	
  Offset
  of Master Lease Obligation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  11.1

  	
  Offset

  	
   

  
	
   

  	
  Section
  11.2

  	
  Waiver
  of Certain Rights

  	
   

  
	
   

  	
  Section
  11.3

  	
  Indemnification
  and Reimbursement for Payments on Behalf of a Member

  	
   

  
	
   

  	
  Section
  11.4

  	
  Notices

  	
   

  
	
   

  	
  Section
  11.5

  	
  Public
  Announcements

  	
   

  
	
   

  	
  Section
  11.6

  	
  Entire
  Agreement

  	
   

  
	
   

  	
  Section
  11.7

  	
  Effect
  of Waiver or Consent

  	
   

  
	
   

  	
  Section
  11.8

  	
  Amendment
  or Modification

  	
   

  
	
   

  	
  Section
  11.9

  	
  Severability

  	
   

  
	
   

  	
  Section
  11.10

  	
  Successors
  and Assigns

  	
   

  
	
   

  	
  Section
  11.11

  	
  Further
  Assurances

  	
   

  
	
   

  	
  Section
  11.12

  	
  Notice
  to Members of Provisions

  	
   

  
	
   

  	
  Section
  11.13

  	
  Remedies

  	
   

  
	
   

  	
  Section
  11.14

  	
  Third
  Parties

  	
   

  
	
   

  	
  Section
  11.15

  	
  Governing
  Law

  	
   

  
	
   

  	
  Section
  11.16

  	
  WAIVER
  OF JURY TRIAL

  	
   

  
	
   

  	
  Section
  11.17

  	
  Waiver
  of Certain Rights

  	
   

  



 


58





















 


	
   

  	
  Section
  11.18

  	
  Counterparts

  	
   

  
	
   

  	
  Section
  11.19

  	
  Descriptive
  Headings

  	
   

  
	
   

  	
  Section
  11.20

  	
  Conflicts

  	
   

  
	
   

  	
  Section
  11.21

  	
  Time
  of the Essence; Computation of Time

  	
   

  
	
   

  	
  Section
  11.22

  	
  No
  Strict Construction

  	
   

  
	
   

  	
  Section
  11.23

  	
  Organizational
  Expenses; Acquisition Costs

  	
   

  
	
   

  	
  Section
  11.24

  	
  Disclosure
  and Waiver of Conflict of Interest

  	
   

  



 


59





















 


Schedule 3.2


 


The Member Commitments of each Member with respect to the Tranches
shall be as follows:


 


	
  Member

  	
   

  	
  Tranche
  I

  	
   

  	
  Tranche
  II

  	
   

  	
  Tranche
  III

  	
   

  	
  Tranche
  IV

  	
   

  	
  Sharing

  Percentages

  	
   

  
	
  CenterPoint Properties Trust

  1808 Swift Drive

  OakBrook, Illinois 60523

  Attn: Mr. James N. Clewlow

  Fax No: (630) 586-8010

  E-mail: jclewlow@centerpoint-prop.com

  	
   

  	
  (0.05) x [Tranche I Equity]

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  (0.05) x [Tranche IV Equity]

  	
   

  	
  5%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JF US Industrial Property Trust

  c/o Mirvac Group

  Level 5, 40 Miller Street

  North Sydney, NSW 2000

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No: (61-2) 9004-8462

  Email: benhindmarsh@mirvac.com.au

  	
   

  	
  (0.95) x [Tranche I Equity]

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  (0.95) x [Tranche IV Equity]

  	
   

  	
  95%

  	
   

  



 


60