Exhibit 10.1


TERM LOAN AGREEMENT


 


DATED AS OF FEBRUARY 28, 2006


 


AMONG


 


DUKE REALTY LIMITED PARTNERSHIP,

AS BORROWER,


 


DUKE REALTY CORPORATION,

AS GENERAL PARTNER AND GUARANTOR,


 


BANK OF AMERICA, N.A.,

AS ADMINISTRATIVE AGENT AND LENDER,


 


BANC OF AMERICA SECURITIES LLC,

AS LEAD ARRANGER AND SOLE BOOK RUNNER,


 


AND


 


THE SEVERAL OTHER LENDERS

FROM TIME TO TIME PARTIES HERETO


 

















 


TABLE OF CONTENTS


 


Page


	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II THE CREDIT

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1.

  	
   

  	
  COMMITMENT

  	
  16

  
	
  2.2.

  	
   

  	
  FINAL
  PRINCIPAL PAYMENT

  	
  17

  
	
  2.3.

  	
   

  	
  LOANS

  	
  17

  
	
  2.4.

  	
   

  	
  INTENTIONALLY
  DELETED

  	
  17

  
	
  2.5.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  17

  
	
  2.6.

  	
   

  	
  INTENTIONALLY
  DELETED

  	
  17

  
	
  2.7.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  17

  
	
  2.8.

  	
   

  	
  MANDATORY
  PRINCIPAL PAYMENTS.

  	
  17

  
	
  2.9.

  	
   

  	
  OPTIONAL
  PRINCIPAL PAYMENTS

  	
  17

  
	
  2.10.

  	
   

  	
  METHOD
  OF SELECTING TYPES AND INTEREST PERIODS THE ADVANCE

  	
  17

  
	
  2.11.

  	
   

  	
  CONVERSION
  AND CONTINUATION OF OUTSTANDING ADVANCES

  	
  18

  
	
  2.12.

  	
   

  	
  CHANGES
  IN INTEREST RATE, ETC.

  	
  18

  
	
  2.13.

  	
   

  	
  RATES
  APPLICABLE AFTER DEFAULT

  	
  19

  
	
  2.14.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  19

  
	
  2.15.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  19

  
	
  2.16.

  	
   

  	
  METHOD
  OF PAYMENT

  	
  19

  
	
  2.17.

  	
   

  	
  NOTES;
  TELEPHONIC NOTICES

  	
  20

  
	
  2.18.

  	
   

  	
  INTEREST
  PAYMENT DATES; INTEREST BASIS

  	
  20

  
	
  2.19.

  	
   

  	
  NOTIFICATION
  OF INTEREST RATES AND PREPAYMENTS

  	
  20

  
	
  2.20.

  	
   

  	
  LENDING
  INSTALLATIONS

  	
  21

  
	
  2.21.

  	
   

  	
  NON-RECEIPT
  OF FUNDS BY THE ADMINISTRATIVE AGENT

  	
  21

  
	
  2.22.

  	
   

  	
  USURY

  	
  21

  
	
  2.23.

  	
   

  	
  APPLICATIONS
  OF MONEYS RECEIVED

  	
  21

  
	
  2.24.

  	
   

  	
  EXTENSION
  OF FACILITY TERMINATION DATE

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III INTENTIONALLY OMITTED

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV CHANGE IN CIRCUMSTANCES

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1.

  	
   

  	
  YIELD
  PROTECTION

  	
  22

  
	
  4.2.

  	
   

  	
  CHANGES
  IN CAPITAL ADEQUACY REGULATIONS

  	
  23

  
	
  4.3.

  	
   

  	
  AVAILABILITY
  OF TYPES OF ADVANCES

  	
  24

  
	
  4.4.

  	
   

  	
  FUNDING
  INDEMNIFICATION

  	
  24

  
	
  4.5.

  	
   

  	
  TAXES

  	
  24

  
	
  4.6.

  	
   

  	
  LENDER
  STATEMENTS; SURVIVAL OF INDEMNITY

  	
  26

  
	
  4.7.

  	
   

  	
  REPLACEMENT
  OF LENDERS UNDER CERTAIN CIRCUMSTANCES

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V CONDITIONS PRECEDENT

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1.

  	
   

  	
  EFFECTIVE
  DATE

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI REPRESENTATIONS AND WARRANTIES

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1.

  	
   

  	
  EXISTENCE

  	
  30

  
	
  6.2.

  	
   

  	
  AUTHORIZATION
  AND VALIDITY

  	
  30

  
	
  6.3.

  	
   

  	
  NO
  CONFLICT; GOVERNMENT CONSENT

  	
  30

  
	
  6.4.

  	
   

  	
  FINANCIAL
  STATEMENTS; MATERIAL ADVERSE CHANGE

  	
  30

  
	
  6.5.

  	
   

  	
  TAXES

  	
  31

  
	
  6.6.

  	
   

  	
  LITIGATION
  AND GUARANTEE OBLIGATIONS

  	
  31

  
	
  6.7.

  	
   

  	
  SUBSIDIARIES

  	
  31

  
	
  6.8.

  	
   

  	
  ERISA

  	
  31

  



 


ii

















 


	
  6.9.

  	
   

  	
  ACCURACY
  OF INFORMATION

  	
  31

  
	
  6.10.

  	
   

  	
  MARGIN
  STOCK

  	
  31

  
	
  6.11.

  	
   

  	
  MATERIAL
  AGREEMENTS

  	
  31

  
	
  6.12.

  	
   

  	
  COMPLIANCE
  WITH LAWS

  	
  32

  
	
  6.13.

  	
   

  	
  OWNERSHIP
  OF PROPERTIES

  	
  32

  
	
  6.14.

  	
   

  	
  INVESTMENT
  COMPANY ACT

  	
  32

  
	
  6.15.

  	
   

  	
  PUBLIC
  UTILITY HOLDING COMPANY ACT

  	
  32

  
	
  6.16.

  	
   

  	
  SOLVENCY

  	
  32

  
	
  6.17.

  	
   

  	
  INSURANCE

  	
  33

  
	
  6.18.

  	
   

  	
  REIT
  STATUS

  	
  33

  
	
  6.19.

  	
   

  	
  ENVIRONMENTAL
  MATTERS

  	
  33

  
	
  6.20.

  	
   

  	
  UNENCUMBERED
  ASSETS

  	
  34

  
	
  6.21.

  	
   

  	
  PLAN
  ASSETS; PROHIBITED TRANSACTIONS

  	
  36

  
	
  6.22.

  	
   

  	
  WINKLER
  PORTFOLIO.

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII COVENANTS

  	
  36

  
	
   

  	
   

  
	
  7.1.

  	
   

  	
  FINANCIAL
  REPORTING

  	
  36

  
	
  7.2.

  	
   

  	
  USE
  OF PROCEEDS

  	
  38

  
	
  7.3.

  	
   

  	
  NOTICE
  OF DEFAULT

  	
  39

  
	
  7.4.

  	
   

  	
  CONDUCT
  OF BUSINESS

  	
  39

  
	
  7.5.

  	
   

  	
  TAXES

  	
  39

  
	
  7.6.

  	
   

  	
  INSURANCE

  	
  39

  
	
  7.7.

  	
   

  	
  COMPLIANCE
  WITH LAWS

  	
  40

  
	
  7.8.

  	
   

  	
  MAINTENANCE
  OF PROPERTIES

  	
  40

  
	
  7.9.

  	
   

  	
  INSPECTION

  	
  40

  
	
  7.10.

  	
   

  	
  MAINTENANCE
  OF STATUS

  	
  40

  
	
  7.11.

  	
   

  	
  DIVIDENDS

  	
  40

  
	
  7.12.

  	
   

  	
  MERGER;
  SALE OF ASSETS

  	
  40

  
	
  7.13.

  	
   

  	
  GENERAL
  PARTNER’S OWNERSHIP AND CONTROL OF BORROWER

  	
  41

  
	
  7.14.

  	
   

  	
  SALE
  AND LEASEBACK

  	
  41

  
	
  7.15.

  	
   

  	
  LIENS

  	
  41

  
	
  7.16.

  	
   

  	
  AFFILIATES

  	
  42

  
	
  7.17.

  	
   

  	
  INTEREST
  RATE HEDGING

  	
  42

  
	
  7.18.

  	
   

  	
  VARIABLE
  INTEREST INDEBTEDNESS

  	
  42

  
	
  7.19.

  	
   

  	
  CONSOLIDATED
  NET WORTH

  	
  42

  
	
  7.20.

  	
   

  	
  INDEBTEDNESS
  AND CASH FLOW COVENANTS

  	
  42

  
	
  7.21.

  	
   

  	
  ENVIRONMENTAL
  MATTERS

  	
  43

  
	
  7.22.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  44

  
	
  7.23.

  	
   

  	
  BORROWER’S
  PARTNERSHIP AGREEMENT

  	
  44

  
	
  7.24.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  44

  
	
  7.25.

  	
   

  	
  NOTICE
  OF RATING CHANGE

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII DEFAULTS

  	
  44

  
	
   

  	
   

  
	
  ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND
  REMEDIES

  	
  47

  
	
   

  	
   

  
	
  9.1.

  	
   

  	
  ACCELERATION

  	
  47

  
	
  9.2.

  	
   

  	
  AMENDMENTS

  	
  47

  
	
  9.3.

  	
   

  	
  PRESERVATION
  OF RIGHTS

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X GENERAL PROVISIONS

  	
  48

  
	
   

  	
   

  
	
  10.1.

  	
   

  	
  SURVIVAL
  OF REPRESENTATIONS

  	
  48

  
	
  10.2.

  	
   

  	
  GOVERNMENTAL
  REGULATION

  	
  48

  
	
  10.3.

  	
   

  	
  HEADINGS

  	
  48

  
	
  10.4.

  	
   

  	
  ENTIRE
  AGREEMENT

  	
  48

  
	
  10.5.

  	
   

  	
  SEVERAL
  OBLIGATIONS; BENEFITS OF THIS AGREEMENT

  	
  48

  
	
  10.6.

  	
   

  	
  EXPENSES;
  INDEMNITY; DAMAGE WAIVER

  	
  49

  



 


iii

















 


	
  10.7.

  	
   

  	
  NUMBERS
  OF DOCUMENTS

  	
  50

  
	
  10.8.

  	
   

  	
  ACCOUNTING

  	
  50

  
	
  10.9.

  	
   

  	
  SEVERABILITY OF PROVISIONS

  	
  51

  
	
  10.10.

  	
   

  	
  NONLIABILITY
  OF LENDERS

  	
  51

  
	
  10.11.

  	
   

  	
  PUBLICITY

  	
  51

  
	
  10.12.

  	
   

  	
  CHOICE
  OF LAW

  	
  51

  
	
  10.13.

  	
   

  	
  CONSENT
  TO JURISDICTION

  	
  51

  
	
  10.14.

  	
   

  	
  WAIVER
  OF JURY TRIAL

  	
  52

  
	
  10.15.

  	
   

  	
  AGENT
  RESPONSIBILITIES

  	
  52

  
	
  10.16.

  	
   

  	
  USA
  PATRIOT ACT NOTIFICATION.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI THE ADMINISTRATIVE AGENT AND AGREEMENTS
  AMONG LENDERS

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  11.1.

  	
   

  	
  APPOINTMENT
  AND AUTHORITY

  	
  52

  
	
  11.2.

  	
   

  	
  RIGHTS
  AS A LENDER

  	
  53

  
	
  11.3.

  	
   

  	
  EXCULPATORY
  PROVISIONS

  	
  53

  
	
  11.4.

  	
   

  	
  RELIANCE
  BY ADMINISTRATIVE AGENT

  	
  54

  
	
  11.5.

  	
   

  	
  DELEGATION
  OF DUTIES

  	
  54

  
	
  11.6.

  	
   

  	
  RESIGNATION
  OF ADMINISTRATIVE AGENT

  	
  54

  
	
  11.7.

  	
   

  	
  NON-RELIANCE
  ON ADMINISTRATIVE AGENT AND OTHER LENDERS

  	
  55

  
	
  11.8.

  	
   

  	
  NO
  OTHER DUTIES, ETC

  	
  55

  
	
  11.9.

  	
   

  	
  ADMINISTRATIVE
  AGENT MAY FILE PROOFS OF CLAIM

  	
  55

  
	
  11.10.

  	
   

  	
  COLLATERAL
  AND GUARANTY MATTERS

  	
  56

  
	
  11.11.

  	
   

  	
  NOTICE
  OF DEFAULTS

  	
  56

  
	
  11.12.

  	
   

  	
  REQUESTS
  FOR APPROVAL

  	
  57

  
	
  11.13.

  	
   

  	
  COPIES
  OF DOCUMENTS

  	
  57

  
	
  11.14.

  	
   

  	
  DEFAULTING
  LENDERS

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII SETOFF; RATABLE PAYMENTS

  	
  58

  
	
   

  	
   

  	
   

  	
  58

  
	
  12.1.

  	
   

  	
  SETOFF

  	
  58

  
	
  12.2.

  	
   

  	
  RATABLE
  PAYMENTS

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS;
  PARTICIPATIONS

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  13.1.

  	
   

  	
  BINDING
  EFFECT.

  	
  58

  
	
  13.2.

  	
   

  	
  PARTICIPATIONS

  	
  59

  
	
  13.3.

  	
   

  	
  ASSIGNMENTS

  	
  60

  
	
  13.4.

  	
   

  	
  INTENTIONALLY
  OMITTED

  	
  61

  
	
  13.5.

  	
   

  	
  DISSEMINATION
  OF INFORMATION

  	
  61

  
	
  13.6.

  	
   

  	
  TAX
  TREATMENT

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV NOTICES

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  14.1.

  	
   

  	
  NOTICES;
  EFFECTIVENESS; ELECTRONIC COMMUNICATION

  	
  61

  
	
  14.2.

  	
   

  	
  CHANGE
  OF ADDRESS, ETC.

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV COUNTERPARTS

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  15.1.

  	
   

  	
  COUNTERPARTS;
  EFFECTIVENESS.

  	
  63

  
	
  15.2.

  	
   

  	
  ELECTRONIC
  EXECUTION OF ASSIGNMENTS.

  	
  63

  



 


	
  SCHEDULE 1

  	
  1

  



 


iv

















 


	
  Exhibit A -
  Pricing Schedule

  	
   

  
	
  Exhibit B -
  Form of Note

  	
   

  
	
  Exhibit C -
  Form of Opinion

  	
   

  
	
  Exhibit D -
  Intentionally Deleted

  	
   

  
	
  Exhibit E -
  Compliance Certificate

  	
   

  
	
  Exhibit F -
  Assignment and Assumption Agreement

  	
   

  
	
  Exhibit G -
  Form of Subsidiary Guaranty

  	
   

  
	
   

  	
   

  
	
  Schedule 1
  - Subsidiaries and Other Investments

  	
   

  
	
  Schedule 2
  - Indebtedness and Liens

  	
   

  
	
  Schedule 3
  - Unencumbered Assets

  	
   

  
	
  Schedule 4
  - Description of Winkler Portfolio

  	
   

  
	
  Schedule 5
  - Notice Information

  	
   

  



 


v

















 


TERM LOAN
AGREEMENT


 


This Term Loan Agreement,
dated as of February 28, 2006, is among Duke Realty Limited Partnership,
an Indiana limited partnership (the “Borrower”), Duke Realty
Corporation, an Indiana corporation (the “General Partner” and the “Guarantor”),
Banc of America Securities LLC (the “Arranger”), Bank of America, N.A. as a
Lender and not individually, but as “Administrative Agent”, and the
several banks, financial institutions and other entities from time to time
parties to this Agreement (the “Lenders”).


 


RECITALS


 


A.                                   The
Borrower is primarily engaged in the business of purchasing, developing,
owning, operating, leasing and managing office, industrial and retail
properties.


 


B.                                     The
General Partner, the Borrower’s sole general partner, is listed on the New York
Stock Exchange and is qualified as a real estate investment trust. The General
Partner owns approximately 91% of the total partnership units in the Borrower
and various limited partners in the Borrower own approximately 9% of such
partnership units.


 


C.                                     The
Borrower and the General Partner have requested that the Lenders make a loan to
Borrower in the amount of $700,000,000 (the “Facility”). The Agent and the
Lenders have agreed to do so on the terms contained herein.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the
parties hereto agree as follows:


 


ARTICLE I



DEFINITIONS


 


As used in this
Agreement:


 


“Administrative Agent”
means Bank of America, N.A. in its capacity as contractual representative for
the Lenders pursuant to Article XI, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article XI.


 


“Advance” means all or
any portion of the borrowing hereunder as portions of such borrowing may be
allocated among the different interest rate options from time to time in
accordance with the terms hereof.


 


“Adjusted EBITDA” means
EBITDA less Capital Expenditure Reserve Amount.


 


“Affiliate” of any Person
means any other Person directly or indirectly controlling, controlled by or
under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 15% or more of any class of
voting securities (or other ownership interests) of the controlled Person or
possesses, directly or indirectly, the power


 

















 


to direct or cause
the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.


 


“Aggregate Commitment”
means the aggregate of the Commitments of all the Lenders, which shall be $700,000,000.


 


“Aggregate Outstanding
Credit Exposure” means, with respect to all of the Lenders at any time, the sum
of the aggregate principal amounts of the Outstanding Credit Exposure.


 


“Agreement” means this Term
Loan Agreement, as it may be amended or modified and in effect from time
to time.


 


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


 


“Arranger” means Banc of
America Securities LLC, and its successors, in its capacity as Lead Arranger
and Sole Book Runner.


 


“Article” means an article of
this Agreement unless another document is specifically referenced.


 


“Assets Under Development”
means, as of any date of determination, any Project owned by the Borrower or
any of its Subsidiaries on which the construction of new income-producing
building or buildings has been commenced and is continuing, both such land and
improvements under construction to be valued for purposes of this Agreement at
then-current book value, as determined in accordance with GAAP.


 


“Assignments of
Membership Interests” means the Assignment of 
Membership Interest by Borrower of its 100% membership interest in WTM
Master Land, LLC and the Assignment of Membership Interest by WTM Master
Building, LLC of its 100% membership interest in TransDulles Buildings, LLC,
Westfields Buildings II, LLC, and Mark Center Buildings II, LLC.


 


“Authorized Officer”
means any of Matthew A. Cohoat, Mark Milnamow, Dennis D. Oklak, Howard L.
Feinsand, Mark Denien or Michael D. Pitts acting singly. The list of Authorized
Officers may be changed by a notice to Administrative Agent from one of
the Authorized Officers.


 


“Bank of America” means
Bank of America, N.A., a national banking association having its principal
office in Chicago, Illinois, in its individual capacity, and its successors.


 


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


 


2

















 


in such rate
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


 


“Base Rate Advance” means
an Advance which bears interest at the Base Rate.


 


“Base Rate Loan” means a
Loan which bears interest at the Base Rate.


 


“Borrower” means Duke
Realty Limited Partnership, an Indiana limited partnership, and its successors
and permitted assigns.


 


“Borrowing Date” means a
date on which an Advance is made hereunder.


 


“Borrowing Notice” is defined
in Section 2.10.


 


“Business Day” means (i) with
respect to any borrowing, payment or rate selection of Eurodollar Advances, a
day (other than a Saturday or Sunday) on which banks generally are open in
Chicago, Illinois, and San Francisco, California for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii) for
all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago, Illinois and San Francisco, California for the
conduct of substantially all of their commercial lending activities.


 


“Capital Expenditure
Reserve Amount” means, for any quarter, the greater of (i) $0.10 per
square foot for industrial  assets and
$1.25 per square foot for office and other assets (each based on the square
footage of such assets owned by the Borrower, General Partner and their
Subsidiaries as of the last day of such quarter), divided by four or (ii) the
average quarterly capital expenditures, leasing commissions and tenant
improvement costs except for leasing commissions and tenant improvement costs
associated with the initial leasing of space not previously occupied (i.e.,
first generation space) for the four most recently completed quarters.


 


“Capital Stock” means any
and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person which is not a corporation and any and all warrants or
options to purchase any of the foregoing.


 


“Capitalized Lease” of a
Person means any lease of Property imposing obligations on such Person, as
lessee thereunder, which are required in accordance with GAAP to be capitalized
on a balance sheet of such Person.


 


“Capitalized Lease
Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be shown as a liability on a balance sheet
of such Person prepared in accordance with GAAP.


 


“Cash Equivalents” means,
as of any date, (i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof having maturities of not more than one year from such date, (ii) time
deposits and certificates of deposit having maturities of not more than one
year from such date and issued by any domestic commercial bank having (A) senior
long-term unsecured debt rated at least A or the equivalent


 


3

















 


thereof by S&P,
A or the equivalent thereof by Fitch or A2 or the equivalent thereof by Moody’s
and (B) capital and surplus in excess of $500,000,000, and (iii) commercial
paper rated at least A-2 or the equivalent thereof by S&P, at least A-2 or
the equivalent thereof by Fitch or P-2 or the equivalent thereof by Moody’s and
in any such case maturing within 360 days from such date.


 


“Closing Date” means the
date of this Agreement.


 


“Code” means the Internal
Revenue Code of 1986, as amended, reformed or otherwise modified from time to
time.


 


“Commitment” means, for
each Lender, the obligation of such Lender to make Loans to the Borrower in an
aggregate amount not exceeding the amount set forth opposite its signature
below or as set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to Section 13.3.2, as such
amount may be modified from time to time pursuant to the terms hereof.


 


“Condemnation” is defined
in Section 8.9.


 


“Consolidated Net Income”
means, for any period, consolidated net income (or loss) of the General
Partner, the Borrower and their Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any other Person accrued prior to
the date it becomes a Subsidiary of the General Partner or the Borrower or is
merged into or consolidated with the General Partner, the Borrower or any of
their Subsidiaries and (b) the undistributed earnings of any Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary.


 


“Consolidated Net Worth”
means, as of any date of determination, an amount equal to total shareholders
equity (as reported on the consolidated balance sheet of Borrower in accordance
with GAAP) plus accumulated depreciation (as reported on such balance sheet in
accordance with GAAP)..


 


“Consolidated Secured
Indebtedness” means, as of any date of determination, the sum of (a) the
aggregate principal amount of all Indebtedness of the General Partner, the
Borrower and their respective Subsidiaries outstanding at such date which is secured
by a Lien on any asset of the General Partner, the Borrower or any of their
respective Subsidiaries and (b) the excess, if any, of (i) the
aggregate principal amount of all Unsecured Indebtedness of the Subsidiaries of
the General Partner or the Borrower over (ii) $5,000,000,
determined on a consolidated basis in accordance with GAAP and (c) the
General Partner’s and Borrower’s pro rata share of any secured debt in
Investment Affiliates.


 


“Consolidated Senior
Unsecured Indebtedness” means, as of any date of determination, the sum of the
aggregate principal amount of all Indebtedness of the General Partner, the
Borrower and their Subsidiaries outstanding at such date, which does not
constitute Consolidated Secured Indebtedness, but excluding Indebtedness which
is contractually subordinated to the Indebtedness of the General Partner, the
Borrower and their Subsidiaries under the Loan Documents on customary terms
acceptable to the Administrative Agent.


 


4

















 


“Consolidated Total
Indebtedness” means, as of any date of determination, all Indebtedness of the
General Partner, the Borrower and their respective Subsidiaries outstanding at
such date, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Unsecured
Indebtedness” means, as of any date of determination, the sum of the aggregate
principal amount of all Indebtedness of the General Partner, the Borrower and
their Subsidiaries outstanding at such date, which does not constitute
Consolidated Secured Indebtedness.


 


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


 


“Conversion/Continuation
Notice” is defined in Section 2.11.


 


“Debt Service” means, for
any fiscal quarter, Interest Expense plus scheduled principal  amortization payments (excluding balloon
payments), provided that in the case of amortization payments made less
frequently than quarterly, 25% of the aggregate amortization payments for the
fiscal year including such fiscal quarter shall be included in Debt Service for
such quarter.


 


“Default” means a Default
described in Article VIII.


 


“Defaulting Lender” means
any Lender which fails or refuses to perform its obligations under this
Agreement within the time period specified for performance of such obligation,
or, if no time frame is specified, if such failure or refusal continues for a
period of five Business Days after written notice from the Administrative
Agent; provided that if such Lender cures such failure or refusal, such
Lender shall cease to be a Defaulting Lender.


 


“EBITDA” means operating
income before extraordinary items, equity in earnings of Investment Affiliates
and minority interest in earnings, as reported by the General Partner, the
Borrower and their Subsidiaries in accordance with GAAP, plus (i) Interest
Expense (excluding the General Partner’s and the Borrower’s pro rata share of
interest expense of Investment Affiliates), depreciation, amortization and
income tax (if any) expense plus (ii) (without redundancy) the General
Partner’s and the Borrower’s pro rata share of Net Operating Income from
Investment Affiliates.


 


“Environmental Laws”
means any and all foreign, Federal, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at
any time hereafter be in effect, in each case to the extent the foregoing are
applicable to the General Partner, the Borrower or any Subsidiary or any of
their respective assets or Projects.


 


“Equity Value” means Net
Operating Income capitalized at a 8.25% rate less any Indebtedness or, in the
case of assets acquired after the closing of the Facility, the purchase price
less any Indebtedness attributable to such asset.


 


5

















 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any rule or regulation issued thereunder.


 


“Eurodollar Advance”
means an Advance which bears interest at a Eurodollar Rate.


 


“Eurodollar Applicable
Margin” means, as of any date with respect to any Eurodollar Interest Period,
0.525%.


 


“Eurodollar Base Rate” has
the meaning specified in the definition of Eurodollar Rate.


 


“Eurodollar Interest
Period” means with respect to a Eurodollar Advance, a period of one, two, three
or six months commencing on a Business Day selected by the Borrower pursuant to
this Agreement. Such Eurodollar Interest Period shall end on (but exclude) the
day which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Eurodollar Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If a Eurodollar Interest Period would
otherwise end on a day which is not a Business Day, such Eurodollar Interest
Period shall end on the next succeeding Business Day, provided, however, that
if said next succeeding Business Day falls in a new calendar month, such
Eurodollar Interest Period shall end on the immediately preceding Business Day.
In no event shall a Eurodollar Interest Period extend beyond the then current
Facility Termination Date.


 


“Eurodollar Loan” means a
Loan which bears interest at a Eurodollar Rate.


 


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


 


 


	
  Eurodollar Rate
  =

  	
  Eurodollar Base Rate

  	
   

  
	
  1.00 – Eurodollar Reserve Percentage

  	
   

  



 


Where,


 


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


 


6

















 


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


 


“Excluded Taxes” means,
in the case of each Lender or applicable Lending Installation and the
Administrative Agent, taxes imposed on its overall income or net worth, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or the Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative Agent’s or such Lender’s principal
executive office or such Lender’s applicable Lending Installation is located.


 


“Extension Fee” means a
fee equal to 0.05% of the outstanding principal amount of the Obligations.


 


“Extension Request” shall
have the meaning set forth in Section 2.24.


 


“Facility Termination Date”
means August 28, 2006 or any later date as may be specified as the
Facility Termination Date in accordance with, and subject to the conditions
contained in, Section 2.24.


 


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


 


“Fitch” means Fitch, Inc.,
and its successors.


 


“Fixed Charges” means,
for any fiscal quarter, Debt Service for such quarter plus Preferred Dividends.


 


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


 


“Funded Percentage”
means, with respect to any Lender at any time, a percentage equal to a fraction
the numerator of which is the amount actually disbursed and outstanding to


 


7

















 


Borrower by such
Lender at such time, and the denominator of which is the total amount disbursed
and outstanding to Borrower by all of the Lenders at such time.


 


“Funds From Operations” means,
for any period, Consolidated Net Income for such period without giving effect
to depreciation and amortization, gains or losses from extraordinary items,
gains or losses on sales of previously depreciated real estate, non-cash, non-recurring charges, including preferred stock
redemption costs and real estate impairment charges, and non-cash adjustments
made pursuant to FASB 150.


 


“GAAP” means generally
accepted accounting principles in the United States of America as in effect
from time to time, applied in a manner consistent with that used in preparing
the financial statements referred to in Section 7.1.


 


“General Partner” means
Duke Realty Corporation, an Indiana corporation, the sole general partner of
the Borrower, and its successors and assigns.


 


“Governmental Authority”
means any nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government.


 


“Guarantee Obligation”
means, as to any Person (the “guaranteeing person”), any obligation
(determined without duplication) of (a) the guaranteeing person or (b) another
Person to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any
such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the maximum stated amount of the primary obligation relating to such
Guarantee Obligation (or, if less, the maximum stated liability set forth in
the instrument embodying such Guarantee Obligation), provided, that in
the absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith. Notwithstanding the foregoing, the term Guarantee Obligation shall not
include a Guarantee by Borrower or General Partner of secured Indebtedness of
an Investment Affiliate (“Investment Affiliate Debt”) if all of the following
conditions are met:


 


8

















 


(a)                                  The
Guarantee provided by the Borrower and/or General Partner is limited to an
amount not greater than 50% of the value of the properties securing the
Investment Affiliate Debt (computed by capitalizing the Property Operating
Income from such properties at a rate of 8.25%), and


 


(b)                                 The
Investment Affiliate Debt is for a stabilized property (defined for this test
as a property that is at least 90% occupied or a property that has been in
operation for greater than one year) or pool of stabilized properties, and


 


(c)                                  The
amount of the Investment Affiliate Debt that is being guaranteed (together with
any other Investment Affiliate Debt of such Investment Affiliate that is
secured by the same collateral that secures the Investment Affiliate Debt being
guarantied) is not more than 50% of the value of the properties securing such
Investment Affiliate Debt (computed by capitalizing the Property Operating
Income from such properties at a rate of 8.25%), and,


 


(d)                                 The
aggregate amount excluded under Guarantee Obligations does not exceed 2.5% of
Market Capitalization.


 


“Guarantor” means the
General Partner in its capacity as the guarantor under the  Guaranty.


 


“Guaranty” means that
certain Guaranty of even date herewith executed by the Guarantor in favor of
the Administrative Agent, for the ratable benefit of the Lenders, as it may be
amended or modified and in effect from time to time.


 


“Indebtedness” of any
Person at any date means without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar instrument, (d) all
Capitalized Lease Obligations, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (f) all
Guarantee Obligations of such Person (excluding in any calculation of
consolidated indebtedness of the Borrower, Guarantee Obligations of the Borrower
in respect of primary obligations of any Subsidiary), (g) all
reimbursement obligations of such Person for letters of credit and other
contingent liabilities to the extent not otherwise included under another
clause of this definition, (h) Net Mark-to-Market Exposure under Rate
Management Transactions, (i) Rate Management Obligations, (j) all
liabilities secured by any lien (other than liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (k) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to accounts or notes receivable sold by such Person or any of its
Subsidiaries, (l) any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on
the consolidated balance sheet of such Person, (m) such Person’s pro


 


9

















 


rata share of debt
in Investment Affiliates and (n) any loans where such Person is liable as a
general partner.


 


“Indemnified Parties”
means Arranger and the Administrative Agent.


 


“Interest Expense” means
all interest expense of the General Partner, the Borrower and their Subsidiaries
determined in accordance with GAAP plus (i) the General Partner’s and the
Borrower’s pro rata share of interest expense in Investment Affiliates, (ii) capitalized
interest not covered by an interest reserve from a loan facility, (iii) 100%
of any accrued, or paid interest incurred on any obligation for which the
Borrower or the General Partner is wholly or partially liable under repayment,
interest carry, or performance guarantees, or other relevant liabilities,
provided that no expense shall be included more than once in such calculation
even if it falls within more than one of the foregoing categories.


 


“Interest Period” means a
Eurodollar Interest Period.


 


“Investment” of a Person
means any loan, advance (other than commission, travel and similar advances to
officers and employees made in the ordinary course of business), extension of
credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, partnership interests, notes, debentures or
other securities of any other Person made by such Person.


 


“Investment Affiliate”
means any Person in which the General Partner or the Borrower, directly or
indirectly, has an ownership interest, whose financial results are not
consolidated under GAAP with the financial results of the General Partner or
the Borrower on the consolidated financial statements of the General Partner or
the Borrower.


 


“Lender Affiliate” means,
(a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by a Lender or an Affiliate of such Lender and (b) with respect
to any Lender that is a fund which invests in bank loans and similar extensions
of credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.


 


“Lenders” means the
lending institutions listed on the signature pages of this Agreement,
their respective successors and assigns and any other lending institutions that
subsequently become parties to this Agreement pursuant to Section 13.3.


 


“Lending Installation”
means, with respect to a Lender, any office, branch, subsidiary or affiliate of
such Lender.


 


“Lien” means any lien
(statutory or other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, the


 


10

















 


interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).


 


“Loan” means, with
respect to a Lender, such Lender’s portion of any Advance.


 


“Loan Documents” means
this Agreement, the Notes, the Guaranty, the Subsidiary Guaranty, the
Assignments of Membership Interests, and any other document from time to time
evidencing or securing indebtedness or obligations incurred by the General
Partner or the Borrower under this Agreement, as any of the foregoing may be
amended or modified from time to time.


 


“Loan Parties” means,
collectively, the Borrower and each Guarantor and Subsidiary Guarantor.


 


“Market Capitalization”
means (a) Total Property Operating Income for the preceding quarter
multiplied by four, capitalized at 8.25%, plus (b) ”earnings from service
operations” for the preceding 12 full calendar months, capitalized at 12.5%, plus
(c) 50% of Assets Under Development (75% for a property that has signed
leases for 75% or more of the square feet of the space), plus (d) the
amount of any cash equivalents, excluding tenant security and other restricted
deposits, plus (e) the lower of book value or market value of land not
under development.


 


“Material Adverse Effect”
means a material adverse effect on (i) the business, Property, condition
(financial or otherwise), results of operations, or prospects of the General
Partner, the Borrower and their Subsidiaries taken as a whole, (ii) the
ability of the General Partner or the Borrower to perform their
obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders thereunder.


 


“Material Subsidiary”
means a Subsidiary owning assets with a value greater than $2,000,000.


 


“Materials of
Environmental Concern” means any gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.


 


“Maximum Legal Rate”
means the maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or received
on the indebtedness evidenced by the Note and as provided for herein or in the
Note or other Loan Documents, under the laws of such state or states whose laws
are held by any court of competent jurisdiction to govern the interest rate
provisions of the Loan.


 


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


 


“Multiemployer Plan”
means a Plan maintained pursuant to a collective bargaining agreement or any
other arrangement to which the General Partner, the Borrower or any member of
the Controlled Group is a party to which more than one employer is obligated to
make contributions.


 


11

















 


“Net Mark-to-Market
Exposure” of a Person means, as of any date of determination, the excess (if
any) of all unrealized losses over all unrealized profits of such Person
arising from Rate Management Transactions. As used herein, “unrealized losses”
means the fair market value of the cost to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and “unrealized
profits” means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).


 


“Net Operating Income”
means, with respect to any Investment Affiliate or Subsidiary, for any period,
such entity’s operating income minus all operating expenses (as determined in
accordance with GAAP) incurred in connection with and directly attributable to
the generation of such operating income but excluding interest expense and
other debt service charges and any non-cash charges such as depreciation or
amortization of financing costs.


 


“Note” means a promissory
note, in substantially the form of Exhibit B hereto, duly
executed by the Borrower and payable to the order of a Lender in the amount of
its Commitment, including any amendment, modification, renewal or replacement
of such promissory note.


 


“Notice of Assignment” is
defined in Section 13.3.2.


 


“Obligations” means the
Advances and all accrued and unpaid fees and all other obligations of Borrower
to the Administrative Agent or the Lenders arising under this Agreement or any
of the other Loan Documents.


 


“Outstanding Credit
Exposure” means, as to any Lender at any time, the aggregate principal amount
of its Loans outstanding at such time.


 


“Other Taxes” is defined
in Section 4.5(ii).


 


“Participants” is defined
in Section 13.2.1.


 


“Payment Date” means,
with respect to the payment of interest accrued on any Advance, the first day
of each calendar month.


 


“PBGC” means the Pension
Benefit Guaranty Corporation, or any successor thereto.


 


“Percentage” means for
each Lender the ratio that such Lender’s Commitment bears to the Aggregate
Commitment, expressed as a percentage.


 


“Permitted
Liens” are defined in Section 7.15.


 


“Person” means any
natural person, corporation, firm, joint venture, partnership, association,
enterprise, trust or other entity or organization, or any government or
political subdivision or any agency, department or instrumentality thereof.


 


12

















 


“Plan” means an employee
pension benefit plan which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code as to which the
General Partner, the Borrower or any member of the Controlled Group may have
any liability.


 


“Preferred Dividends”
shall mean, for any period, without duplication of such amounts as constitute
intercompany debts or distributions, the sum of (a) dividends or
distributions due and payable or accrued during such period on preferred stock
issued by General Partner or a Subsidiary, and (b) distributions which are
the functional equivalent of preferred dividends (i.e., which the issuer is
required to make prior to distributions on another class or other classes
of partnership interests) and which are due and payable or accrued during such
period on preferred partnership interests issued by Borrower or any other
Subsidiary.


 


“Project” means any real
estate asset owned or operated by the Borrower or any Subsidiary and operated
or intended to be operated as an office, industrial or retail property.


 


“Property” of a Person
means any and all property, whether real, personal, tangible, intangible, or
mixed, of such Person, or other assets owned, leased or operated by such
Person.


 


“Property Operating
Income” means, with respect to any Project or other real estate asset, for any
period, earnings from rental operations (computed in accordance with GAAP) attributable
to such Project or other real estate asset plus depreciation, amortization and
interest expense for such period, and, if such period is less than a year,
adjusted by straight lining various ordinary operating expenses which are
payable less frequently than once during every such period (e.g. real estate
taxes and insurance).


 


“Purchasers” is defined
in Section 13.3.1.


 


“Rate Management
Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.


 


“Rate Management
Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered by the Borrower or any Subsidiary
which is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of these transactions) or any combination thereof, whether linked to one or
more interest rates, foreign currencies, commodity prices, equity prices or
other financial measures.


 


“Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit
by banks for the


 


13

















 


purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.


 


“Related Parties” means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.


 


“Reportable Event” means
a reportable event as defined in Section 4043 of ERISA and the regulations
issued under such section, with respect to a Plan, excluding, however, such
events as to which the PBGC by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event,
provided, however, that a failure to meet the minimum funding standard of Section 412
of the Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice requirement in
accordance with either Section 4043(a) of ERISA or Section 412(d) of
the Code.


 


“Required Lenders” means prior
to disbursement, Lenders in the aggregate having more than 50% of the Aggregate
Commitment (not held by Defaulting Lenders who are not entitled to vote) or, after
disbursement, Lenders in the aggregate holding more than 50% of the Aggregate Outstanding
Credit Exposure (not held by Defaulting Lenders who are not entitled to vote).


 


“Revolving Credit
Agreement” means that certain Fifth Amended and Restated Revolving Credit
Agreement by and among Borrower, General Partner, the Administrative Agent, and
certain of the Lenders parties thereto, dated as of January 25, 2006
pursuant to which the Lenders that are parties thereto agreed to make loans to
the Borrower in the maximum aggregate amount of $1,000,000,000, subject to
increase to $1,300,000,000.


 


“Section” means a
numbered section of this Agreement, unless another document is
specifically referenced.


 


“Single Employer Plan”
means a Plan maintained by the General Partner or the Borrower or any member of
the Controlled Group for employees of the General Partner or the Borrower or
any member of the Controlled Group.


 


“Subsidiary” means, as to
any Person, a corporation, partnership or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person,
including all subsidiaries consolidated pursuant to GAAP. Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower or the
General Partner.


 


“Subsidiary Guarantor”
means a Subsidiary of Borrower or General Partner which executes and delivers a
Subsidiary Guaranty, which shall include the Subsidiaries owning a direct or
indirect interest in the Winkler Portfolio, unless prohibited from executing a
Guaranty by any applicable financing documents plus any other Subsidiaries
owning an Unencumbered Asset included in the calculation of the covenant
contained in Section 7.20(iii).


 


14

















 


“Subsidiary Guaranty”
means any guaranty executed and delivered by any Subsidiary Guarantor,
substantially in the form of Exhibit K, as the same may be
amended, supplemented or otherwise modified from time to time.


 


“Substantial Portion”
means, with respect to the Property of the General Partner, the Borrower or
their Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the General Partner, the Borrower and their Subsidiaries
as disclosed on the most recently issued quarterly consolidated financial
statements of the General Partner, the Borrower and their Subsidiaries, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the General Partner, the Borrower and their
Subsidiaries as reflected in the financial statements referred to in clause (i) above.


 


“S&P” means Standard &
Poor’s Ratings Group and its successors.


 


“Taxes” means any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and any and all liabilities with respect to the foregoing, but
excluding Excluded Taxes and Other Taxes.


 


“Total Liabilities” means
all Indebtedness plus all other GAAP liabilities of the Borrower, General
Partner and their respective Subsidiaries.


 


“Total Property Operating
Income” means the sum of (i) earnings from rental operations (computed in
accordance with GAAP) plus depreciation, amortization and interest expense
(adjusted for any acquisitions and divestitures), and (ii) (without
redundancy) the Borrower’s pro rata share of Net Operating Income from
Investment Affiliates. The earnings from rental operations shall be adjusted to
include pro forma earnings (as substantiated to the satisfaction of the
Administrative Agent) for an entire quarter for any property acquired or placed
in service during the quarter and to exclude earnings during such quarter from
any property not owned as of the end of the quarter.


 


“Transferee” is defined
in Section 13.5.


 


“Type” means, with
respect to any Advance, its nature as a Base Rate Advance or a Eurodollar
Advance.


 


“Unencumbered Asset”
means, with respect to any Project which is in service, as of the end of any
fiscal quarter, the circumstance that such asset on such date (a) is not
subject to any Liens or claims (including restrictions on transferability or
assignability) of any kind (including any such Lien, claim or restriction
imposed by the organizational documents of the Borrower or any Subsidiary, but
excluding Permitted Liens other than those identified in Sections 7.15(v) and
(vi)), (b) is not subject to any agreement (including (i) any
agreement governing Indebtedness incurred in order to finance or refinance the
acquisition of such asset, and (ii) if applicable, the organizational
documents of the Borrower or any Subsidiary) which prohibits or limits the
ability of the General Partner, the Borrower or any of their Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the General Partner, the Borrower or any of their Subsidiaries, and (c) is
not subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (but excluding Permitted Liens
other than


 


15

















 


those identified
in Sections 7.15(v) and (vi)) on any assets or Capital
Stock of the General Partner, the Borrower or any of their Subsidiaries, or
would entitle any Person to the benefit of any Lien (but excluding Permitted
Liens other than those identified in Sections 7.15(v) and (vi))
on such assets or Capital Stock upon the occurrence of any contingency
(including, without limitation, pursuant to an “equal and ratable” clause), and
(d) is 100% owned in fee simple by the Borrower or a Subsidiary Guarantor.
For the purposes of this Agreement, any Property of a Subsidiary shall not be
deemed to be unencumbered unless both (i) such Property and (ii) all
Capital Stock of such Subsidiary held by the General Partner or the Borrower (directly
or indirectly) is unencumbered.


 


“Unfunded Liabilities”
means the amount (if any) by which the present value of all vested
nonforfeitable benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plans.


 


“Unmatured Default” means
an event which but for the lapse of time or the giving of notice, or both,
would constitute a Default.


 


“Unrestricted Cash and
Cash Equivalents” means, as of any date of determination, the sum of (a) the
aggregate amount of Unrestricted cash then held by the Borrower or any of its
consolidated Subsidiaries and (b) the aggregate amount of Unrestricted
Cash Equivalents (valued at the lower of cost and fair market value) then held
by the Borrower or any of its consolidated Subsidiaries. As used in this
definition, “Unrestricted” means the specified asset is not subject to any
Liens or claims of any kind in favor of any Person.


 


“Wholly-Owned Subsidiary”
of a Person means (i) any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.


 


“Winkler Portfolio” means
the portfolio of properties being acquired by Borrower with proceeds advanced
pursuant to this Agreement, and further described in Schedule 4.


 


The foregoing definitions
shall be equally applicable to both the singular and plural forms of the
defined terms.


 


ARTICLE II



THE CREDIT


 


2.1.                              Commitment.
From and including the date of this Agreement and prior to the Facility
Termination Date, each Lender severally agrees, subject to the terms and
conditions set forth in this Agreement, to make an initial Advance in a single
disbursement to the Borrower in an amount not to exceed the amount of its
Commitment. This is not a revolving credit facility and any portions of such
Advance repaid hereunder may not be reborrowed. The Commitment to lend
hereunder shall expire on the Facility Termination Date.


 


16

















 


2.2.                              Final
Principal Payment. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.


 


2.3.                              Loans.
The initial Advance hereunder may be requested as, continued as, or
converted into Base Rate Advances or Eurodollar Advances, selected by the
Borrower in accordance with Sections 2.10 and 2.11.


 


2.4.                              Intentionally
Deleted.


 


2.5.                              Intentionally
Omitted.


 


2.6.                              Intentionally
Deleted.


 


2.7.                              Intentionally
Omitted.


 


2.8.                              Mandatory
Principal Payments. Any net proceeds (after repayment of secured debt, if
any, encumbering the applicable property and payment of customary closing
costs) received by Borrower and its Subsidiaries from the sale or refinancing
of any assets comprising the Winkler Portfolio, including the sale of joint
venture interests therein, shall be paid by Borrower to Administrative Agent
and applied to reduce the outstanding amount of the Obligations.


 


2.9.                              Optional
Principal Payments. The Borrower may from time to time pay, but without
penalty or premium, all or any part of outstanding Base Rate Advances provided
Administrative Agent receives notice of the payment by 10:00 a.m. Chicago
time and the payment by 3:00 p.m. Chicago time. The Administrative Agent
will notify the Lenders by 11:00 a.m. of any such notice received. The
Borrower may from time to time pay a Eurodollar Advance, provided a Eurodollar
Advance may not be paid prior to the last day of the applicable Interest
Period unless accompanied by any amount due pursuant to Section 4.4. It
being further provided that any such partial prepayments set forth above shall
be in the minimum aggregate amount of Ten Million Dollars ($10,000,000) or any
integral multiple of One Million Dollars ($1,000,000) in excess thereof. Amounts
prepaid may not be reborrowed.


 


2.10.                        Method of Selecting Types
and Interest Periods the Advance. The Borrower shall select the Type of
Advance and, in the case of each Eurodollar Advance, the Interest Period
applicable to the Advance from time to time. The Borrower shall give the
Administrative Agent irrevocable notice (a “Borrowing Notice”) (i) not
later than 10:00 a.m. Chicago time, at least one (1) Business Day
before the Borrowing Date of an Base Rate Advance, (ii) not later than
10:00 a.m. Chicago time, at least three (3) Business Days before the
Borrowing Date for a Eurodollar Advance:


 


(a)                                  the
Borrowing Date, which shall be a Business Day, of such Advance,


 


(b)                                 the
aggregate amount of such Advance,


 


(c)                                  the
Type of Advance selected, and


 


17

















 


(d)                                 in
the case of each Eurodollar Advance, the Interest Period applicable thereto.


 


Not later than noon
(Chicago time) on each Borrowing Date, each Lender shall make available its
Loan or Loans, in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XIV. The Lenders
shall not be obligated to match fund their Eurodollar Advances. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent’s aforesaid address.


 


No Interest Period may end
after the Facility Termination Date and, unless all of the Lenders otherwise
agree in writing, in no event may there be more than three (3) different
Interest Periods for Eurodollar Advances outstanding at any one time.


 


2.11.                        Conversion and Continuation
of Outstanding Advances. Base Rate Advances shall continue as Base Rate Advances
unless and until such Base Rate Advances are converted into Eurodollar Advances.
Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar
Advance shall be automatically converted into an Base Rate Advance unless the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.8, the Borrower may elect
from time to time to convert all or any part of an Advance of any Type
into any other Type of Advance; provided that any conversion of any Eurodollar
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Administrative Agent
irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of an Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Chicago time) at least one Business Day, in the case of a
conversion into an Base Rate Advance, or three Business Days, in the case of a
conversion into or continuation of a Eurodollar Advance, prior to the date of the
requested conversion or continuation, specifying:


 


(i)                                                             the
requested date which shall be a Business Day, of such conversion or
continuation;


 


(ii)                                                          the
aggregate amount and Type of the Advance which is to be converted or continued;
and


 


(iii)                                                       the
amount and Type(s) of Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or continuation of a Eurodollar
Advance, the duration of the Interest Period applicable thereto.


 


2.12.                        Changes in Interest Rate,
Etc. Each Base Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Advance
is made or is converted from a Eurodollar Advance into a Base Rate Advance
pursuant to Section 2.11 to but excluding the date it becomes due
or is converted into a Eurodollar Advance pursuant to Section 2.11
hereof, at a rate per annum equal to the Base Rate for such day.


 


18

















 


Changes in the
rate of interest on that portion of any Advance maintained as a Base Rate Advance
will take effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined as the Eurodollar Rate applicable
to such Eurodollar Advance, plus the Eurodollar Applicable Margin.


 


2.13. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 2.10, 2.11 or 2.12,
during the continuance of a Default or Unmatured Default the Required Lenders
may, at their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of Section 9.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no Advance may be made as, converted into or continued beyond
its current term as a Eurodollar Advance. During the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare that (i) each
Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus
2% per annum and (ii) each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate otherwise applicable to the Base Rate Advance
plus 2% per annum; provided that such rates shall become applicable
automatically without notice to the Borrower or an election or action by the
Administrative Agent or any Lender if a Default occurs under Section 8.7
or Section 8.8, or a Default occurs relating to the payment of
principal or interest unless waived by the Required Lenders.


 


2.14                           Intentionally
Omitted.


 


2.15                           Intentionally
Omitted.


 


2.16.                        Method of Payment. All
payments of the Obligations hereunder shall be made, without setoff, deduction,
or counterclaim, in immediately available funds to the Administrative Agent at
the Administrative Agent’s address specified pursuant to Article XIV,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (local time) on
the date when due and shall be applied by the Administrative Agent among the
Lenders in accordance with the class or type of Obligation being paid. Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at such Lender’s address
specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender
promptly, which payment is expected to be made to such Lender by the close of
business on the same Business Day received by Administrative Agent if received
by noon (local time) but shall in any event not be made to such Lender later
than the next Business Day, provided that the Administrative Agent shall
pay to each such Lenders interest thereon, at the lesser of (i) the Federal
Funds Effective Rate and (ii) the rate of interest applicable to such
Loans, from the Business Day such funds are received by the Administrative
Agent in immediately available funds (provided, if such funds are not
received by the Administrative Agent by noon (local time), such period shall
commence on the Business Day immediately following the day such funds are


 


19

















 


received) until
such funds are paid to each such Lenders. The Administrative Agent is hereby
authorized to charge the account of the Borrower maintained with Administrative
Agent for each payment of any of the Obligations as it becomes due hereunder.


 


2.17.                        Notes; Telephonic Notices.
Each Lender is hereby authorized to record the principal amount of each of its
Loans and each repayment on the schedule attached to its Note, provided,
however, that the failure to so record shall not affect the Borrower’s
obligations under such Note. Each Lender’s books and records, including without
limitation, the information, if any, recorded by the Lender on the Schedule attached
to its Note, shall be deemed to be prima  facia correct. The
Borrower hereby authorizes the Lenders and the Administrative Agent to extend,
convert or continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver promptly to the Administrative
Agent a written confirmation signed by an Authorized Officer of each telephonic
notice, if such confirmation is requested by the Administrative Agent or any
Lender. If the written confirmation differs in any material respect from the
action taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.


 


2.18.                        Interest Payment Dates;
Interest Basis. Interest accrued on each Base Rate Advance shall be payable
on the last day of each calendar quarter, commencing with the first such date
to occur after the date hereof, on any date on which the Base Rate Advance is
prepaid, whether due to acceleration or otherwise, and at maturity. Interest
accrued on that portion of the outstanding principal amount of any Base Rate Advance
converted into a Eurodollar Advance on a day other than the last day of a
calendar quarter shall be payable on the date of conversion. Interest accrued
on each Eurodollar Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Eurodollar Advance is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Eurodollar Advance having an Interest Period longer than three months shall also
be payable on the last day of each three-month interval during such Interest
Period. Interest and all fees hereunder shall be calculated for actual days
elapsed on the basis of a 360-day year, except for interest on Base Rate
Advances which shall be calculated on the basis of actual number of days
elapsed in a 365/366 day year. Interest shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the day
an Advance is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.


 


2.19.                        Notification of Interest
Rates and Prepayments. Promptly after receipt thereof (but in no event later
than one Business Day prior to the proposed Borrowing Date for a Base Rate Advance
or three Business Days prior to the proposed Borrowing Date for a Eurodollar
Advance) the Administrative Agent will notify each Lender of the contents of
each Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. The Administrative Agent will notify each Lender of
the interest rate applicable to each Eurodollar


 


20






 















 


Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.


 


2.20.                        Lending
Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.


 


2.21.                        Non-Receipt
of Funds by the Administrative Agent. Unless the Borrower or a Lender, as
the case may be, notifies the Administrative Agent prior to the date on
which it is scheduled to make payment to the Administrative Agent of (i) in
the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day or (ii) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.


 


2.22.                        Usury.
This Agreement and each Note are subject to the express condition that at no
time shall the Borrower be obligated or required to pay interest on the
principal balance of the Loan at a rate which could subject any Lender to
either civil or criminal liability as a result of being in excess of the
Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents,
the Borrower is at any time required or obligated to pay interest on the
principal balance due hereunder at a rate in excess of the Maximum Legal Rate,
the interest rate or the Default Rate, as the case may be, shall be deemed
to be immediately reduced to the Maximum Legal Rate and all previous payments
in excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to a Lender for the use, forbearance, or
detention of the sums due under the Loan, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Loan until payment in full so that the rate or amount
of interest on account of the Loan does not exceed the Maximum Legal Rate of
interest from time to time in effect and applicable to the Loan for so long as
the Loan is outstanding.


 


2.23.                        Applications
of Moneys Received. All moneys collected or received by the Administrative
Agent on account of the Facility directly or indirectly, shall be applied in
the following order of priority:


 


21

















 


(i)                                                             to
the payment of all reasonable costs incurred in the collection of such moneys
of which the Administrative Agent shall have given notice to the Borrower;


 


(ii)                                                          to
the reimbursement of any yield protection due to the Lenders in accordance with
Section 4.1;


 


(iii)                                                       (a) in
case the entire unpaid principal of the Loan shall not have become due and
payable, the whole amount received as interest then due to the Lenders (other
than a Defaulting Lender) as their respective Percentages appear, or (b) in
case the entire unpaid principal of the Loan shall have become due and payable,
as a result of a Default or otherwise, to the payment of the whole amount then
due and payable on the Loan for principal, together with interest thereon at
the Default Rate or the interest rate; and


 


(iv)                                                      to
the payment of any sums due to each Defaulting Lender as their respective
Percentages appear (provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting Lender).


 


2.24.                        Extension
of Facility Termination Date. Provided no Default or Unmatured Default has
occurred and is continuing the Borrower may request up to two consecutive ninety
day extensions of the Facility Termination Date by submitting a request for an
extension to the Agent (an “Extension Request”) no more than 90 and no fewer
than 30 days prior to the then applicable Facility Termination Date and paying
the Extension Fee on or before the commencement of each extension period. Promptly
upon receipt of the Extension Request. Administrative Agent will notify Lenders
that such Extension Request has been submitted.


 


ARTICLE III


 


INTENTIONALLY OMITTED


 


 


ARTICLE IV


 


CHANGE IN CIRCUMSTANCES


 


4.1.                              Yield
Protection.


 


If, on or after the date
of this Agreement, the adoption of any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any change in the interpretation or administration thereof by
any governmental or quasi-governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:


 


22

















 


(a)                                  subjects
any Lender or any applicable Lending Installation to any Taxes, or changes the
basis of taxation of payments (other than with respect to Excluded Taxes) to
any Lender in respect of its Eurodollar Loans, or


 


(b)                                 imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or


 


(c)                                  imposes
any other condition the result of which is to increase the cost to any Lender
or any applicable Lending Installation of making, funding or maintaining its Eurodollar
Loans, or reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Eurodollar Loans, or participations
therein, or requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of Eurodollar Loans, or
participations therein held or interest received by it, by an amount deemed
material by such Lender as the case may be,


 


and the result of any of
the foregoing is to increase the cost to such Lender or applicable Lending
Installation, as the case may be, of making or maintaining its Eurodollar
Loans or Commitment or of issuing or to reduce the return received by such
Lender or applicable Lending Installation, as the case may be, in
connection with such Eurodollar Loans or Commitment, then, within 15 days of
demand by such Lender, as the case may be, the Borrower shall pay such
Lender, as the case may be, such additional amount or amounts as will
compensate such Lender, as the case may be, for such increased cost or
reduction in amount received.


 


4.2.                              Changes
in Capital Adequacy Regulations.


 


If a Lender in good faith
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change (as hereinafter defined),
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender in good faith
determines is attributable to this Agreement, its Outstanding Credit Exposure
or its obligation to make Loans hereunder (after taking into account such
Lender’s policies as to capital adequacy). “Change” means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines
(as hereinafter defined) or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines” means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the 


 


23

















 


July 1988
report of the Basel Committee on Banking Regulation and Supervisory Practices
Entitled “International Convergence of Capital Measurements and Capital
Standards,” including transition rules, and any amendments to such regulations
adopted prior to the date of this Agreement.


 


4.3.                              Availability
of Types of Advances.


 


If any Lender in good
faith determines that maintenance of any of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, the Administrative Agent
shall suspend the availability of the affected Type of Advance and require any Eurodollar
Advances of the affected Type to be repaid (together with any amounts due
pursuant to Section 4.4); or if the Required Lenders in good faith
determine that (i) deposits of a type or maturity appropriate to match
fund Eurodollar Advances are not available, or (ii) an interest rate
applicable to a Type of Advance does not accurately reflect the cost of making
a Eurodollar Advance of such Type, then, the Administrative Agent shall suspend
the availability of the affected Type of Advance with respect to any Eurodollar
Advances made after the date of any such determination. If the Borrower is
required to so repay a Eurodollar Advance, the Borrower may concurrently
with such repayment borrow from the Lenders, in the amount of such repayment, a
Loan bearing interest at the Alternate Base Rate.


 


4.4.                              Funding
Indemnification.


 


If any payment of a
ratable Eurodollar Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable Eurodollar Advance is not made on the date specified by
the Borrower for any reason other than default by the Lenders or as a result of
unavailability pursuant to Section 4.3, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the ratable Eurodollar Advance, and shall pay all
such losses or costs within fifteen (15) days after written demand therefor.


 


4.5.                              Taxes.


 


(i)                                                                           All
payments by the Borrower to or for the account of any Lender, the
Administrative Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 4.5)
such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (b) the Borrower shall make such deductions, (c) the Borrower
shall pay the full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower 


 


24

















 


shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within 30 days after such payment is made.


 


(ii)                                                                        In
addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note (“Other Taxes”).


 


(iii)                                                                     The
Borrower hereby agrees to indemnify the Administrative Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 4.5)
paid by the Administrative Agent or such Lender as a result of its Commitment,
any Loans made by it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. Payments due
under this indemnification shall be made within 30 days after the date the
Administrative Agent or such Lender makes demand therefor pursuant to Section 4.6.


 


(iv)                                                                    Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not
more than ten Business Days after the date of this Agreement, (i) deliver
to the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii) deliver
to the Administrative Agent a United States Internal Revenue Form W-8 or
W-9, as the case may be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Administrative Agent (x)
renewals or additional copies of such form (or any successor form) on or
before the date that such form expires or becomes obsolete, and (y) after
the occurrence of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as may be
reasonably requested by the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that such Lender
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless
an event (including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.


 


25

















 


(v)                                                                       For
any period during which a Non-U.S. Lender has failed to provide the Borrower
with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required
to be provided), such Non-U.S. Lender shall not be entitled to indemnification
under this Section 4.5 with respect to Taxes imposed by the United States.


 


(vi)                                                                    Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law
of any relevant jurisdiction or any treaty shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding
or at a reduced rate following receipt of such documentation.


 


(vii)                                                                 If
the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form was
not delivered or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its exemption
from withholding ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent,
which attorneys may be employees of the Administrative Agent). The
obligations of the Lenders under this Section 4.5(vii) shall survive
the payment of the Obligations and termination of this Agreement.


 


4.6.                              Lender
Statements; Survival of Indemnity.


 


To the extent possible in
the exercise of any Lender’s good faith discretion, each Lender shall designate
an alternate Lending Installation with respect to its Eurodollar Loans to
reduce any liability of the Borrower to such Lender under Sections 4.1, 4.2 and
4.5 or to avoid the unavailability of Advances under Section 4.3, so long
as such designation does not reduce such Lender’s income or increase such
Lender’s liabilities. Each Lender shall deliver a written statement of such
Lender to the Borrower (with a copy to the Administrative Agent) as to the
amount due, if any, under Section 4.1, 4.2, 4.4 or 4.5. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of 


 


26

















 


amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by
the Borrower of such written statement. The obligations of the Borrower under
Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of the Obligations and
termination of this Agreement.


 


4.7.                              Replacement
of Lenders under Certain Circumstances.


 


The Borrower shall be
permitted to replace any Lender which (a) is not capable of receiving
payments without any deduction or withholding of United States federal income
tax pursuant to Section 4.5, or (b) cannot maintain its Eurodollar
Loans at a suitable Lending Installation pursuant to Section 4.6,
with a replacement bank or other financial institution; provided that (i) such
replacement does not conflict with any applicable legal or regulatory requirements
affecting the remaining Lenders, (ii) no Default or (after notice thereof
to Borrower) no Unmatured Default shall have occurred and be continuing at the
time of such replacement, (iii) the Borrower shall repay (or the
replacement bank or institution shall purchase, at par) all Loans and other
amounts owing to such replaced Lender prior to the date of replacement, (iv) the
Borrower shall be liable to such replaced Lender under Sections 4.4
and 4.6 if any Eurodollar Loan owing to such replaced Lender shall be
prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (v) the replacement bank or institution, if not already
a Lender, and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (vi) the replaced Lender shall
be obligated to make such replacement in accordance with the provisions of Section 13.3
(provided that the Borrower shall be obligated to pay the processing fee
referred to therein), (vii) until such time as such replacement shall be
consummated, the Borrower shall continue to pay all amounts payable hereunder
without setoff, deduction, counterclaim or withholding and (viii) any such
replacement shall not be deemed to be a waiver of any rights which the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.


 


ARTICLE V


 


CONDITIONS PRECEDENT


 


5.1.                              Effective
Date. This Agreement shall not become effective, and the Lenders shall not
be required to make the initial Advance hereunder unless (a) the Borrower
shall have paid all fees due and payable to the Lenders and the Administrative
Agent hereunder, and (b) the Borrower shall have complied with the requirements
below and furnished to the Administrative Agent, in form and substance
satisfactory to each of the Lenders and their counsel and with sufficient
copies for the Lenders, the following:


 


(i)                                                                            The
duly executed originals of the Loan Documents, including the Notes, payable to
the order of each of the Lenders, the Guaranty, the Subsidiary Guaranty, the
Assignments of Membership Interest, and this Agreement;


 


27

















 


(ii)                                                                         Certified
copies of the articles of incorporation of the General Partner and the
certificate of limited partnership of the Borrower, both with all amendments
and certified by the appropriate governmental officer of the State of Indiana
as of a recent date, as well as any other information required by Section 326
of the USA PATRIOT Act or necessary for the Administrative Agent or any Lender
to verify the identity of the General Partner and Borrower as required by Section 326
of the USA PATRIOT Act;


 


(iii)                                                                      Certificates
of good standing for the General Partner and the Borrower, certified by the
appropriate governmental officer of the State of Indiana, and if requested by
Administrative Agent, foreign qualification certificates for the General
Partner and the Borrower, certified by the appropriate governmental officer,
for each jurisdiction where the failure to so qualify or be licensed (if
required) would have a Material Adverse Effect;


 


(iv)                                                                     Copies,
certified by an officer of the General Partner, of (1) its formation
documents (including by-laws), together with all amendments thereto, (2) the
formation documents (including the Partnership Agreement) of the Borrower,
together with all amendments thereto, and (3) the formation documents of
each Subsidiary Guarantor, together with all amendments thereto;


 


(v)                                                                        An
incumbency certificate, executed by an officer of the General Partner, which
shall identify by name and title and bear the signature of the Persons
authorized to sign the Loan Documents and to make borrowings hereunder on
behalf of the Borrower, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in writing by
the Borrower;


 


(vi)                                                                     Copies,
certified by the Secretary or Assistant Secretary, of the General Partner’s
Board of Directors’ resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) authorizing the Advances provided
for herein and the execution, delivery and performance of the Loan Documents to
be executed and delivered by the General Partner and the Borrower hereunder;


 


(vii)                                                                  A
written opinion of the General Partner and the Borrower’s counsel, addressed to
the Lenders in substantially the form of Exhibit C hereto;


 


(viii)                                                               A
certificate, signed by an officer of the General Partner on behalf of the
Borrower and for itself, stating that on the initial Borrowing Date no Default
or Unmatured Default has occurred and is continuing and that all
representations and warranties of the General Partner and the Borrower are true
and correct as of the initial Borrowing Date, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Borrower;


 


28

















 


(ix)                                                                       The
most recent financial statements of the General Partner and the Borrower and a
certificate from an officer of the General Partner that no material adverse
change in the General Partner’s or the Borrower’s financial condition has
occurred since September 30, 2005 ;


 


(x)                                                                          UCC
financing statement, judgment, and tax lien searches with respect to the General
Partner, the Borrower, and each entity that is an assignor under the
Assignments of Membership Interests, from their states of organization and the
states where they have their principal place of business;


 


(xi)                                                                       Evidence
of sufficient Unencumbered Assets (which evidence if requested by
Administrative Agent may include mortgage releases and title policies) to
assist the Administrative Agent in determining the Borrower’s compliance with
the covenants set forth in Article VII herein;


 


(xii)                                                                    Written
money transfer instructions, as the Administrative Agent may have
reasonably requested;


 


(xiii)                                                                 Evidence
that all parties whose consent is required for Borrower or General Partner to
execute the Loan Documents have provided such consents;


 


(xiv)                                                                The
Administrative Agent shall have determined that (i) since September 30,
2005 there is an absence of any material
adverse change or disruption in primary or secondary loan syndication markets,
financial markets or in capital markets generally that would likely impair
syndication of the Loans hereunder and (ii) the Borrower has fully
cooperated with the Administrative Agent’s syndication efforts including,
without limitation, by providing the Administrative Agent with information
regarding the Borrower’s operations and prospects and such other information as
the Administrative Agent deems necessary to successfully syndicate the Loans
hereunder;


 


(xv)                                                                   UCC
Financing Statements relating to the Assignments of Membership Interests:


 


(xv)                                                                   Such
other documents as any Lender or its counsel may have reasonably
requested, the form and substance of which documents shall be acceptable
to the parties and their respective counsel.


 


Without limiting the
generality of the provisions of Section 11.4, for purposes of determining
compliance with the conditions specified in this Section 5.1, each Lender
that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.


 


29

















 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


The General Partner and
the Borrower each respectively (unless otherwise noted) represents and warrants
to the Lenders that:


 


6.1.                              Existence.
It is duly organized, validly existing and in good standing under the laws of
the State of Indiana, with its principal place of business in Indianapolis,
Indiana and is duly qualified as a foreign corporation or partnership, properly
licensed (if required), in good standing and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted. Each
of its Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.


 


6.2.                              Authorization
and Validity. It has the power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by it of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper proceedings, and the
Loan Documents constitute legal, valid and binding obligations of,
respectively, the General Partner or the Borrower enforceable against such
entity in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and general principles of equity.


 


6.3.                              No
Conflict; Government Consent. Neither the execution and delivery by it of
the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding
on, respectively, the General Partner or the Borrower or any of such entity’s Material
Subsidiaries or such entity’s or any Material Subsidiary’s articles of
incorporation, by-laws, certificate of limited partnership or partnership agreement
or the provisions of any indenture, instrument or agreement to which such
entity or any of its Material Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on
the Property of such entity or a Material Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents.


 


6.4.                              Financial
Statements; Material Adverse Change. The September 30, 2005
consolidated financial statements of the General Partner, the Borrower and
their Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
General Partner, the Borrower and their Subsidiaries at such date and the
consolidated results of their operations for the period then ended. Since September 30,
2005, there has been no change in the business, Property, prospects, condition
(financial or otherwise)


 


30

















 


or results of operations of the General Partner, the
Borrower and their Subsidiaries which could have a Material Adverse Effect.


 


6.5.                              Taxes.
It and its Subsidiaries have filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by,
respectively, the General Partner or the Borrower or any of its Subsidiaries
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. No tax liens have been filed and no
claims are being asserted with respect to any such taxes. The charges, accruals
and reserves on the books of the General Partner, the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are
adequate.


 


6.6.                              Litigation
and Guarantee Obligations. There is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of its officers, threatened against or affecting the General Partner,
the Borrower or any of their Subsidiaries which could have a Material Adverse
Effect. It has no material contingent obligations not provided for or disclosed
in the financial statements referred to in Section 7.1.


 


6.7.                              Subsidiaries.
Schedule 1 hereto contains an accurate list of all of the presently
existing Subsidiaries of such entity, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by it or its Subsidiaries. All of the issued and outstanding shares
of capital stock of such Subsidiaries have been duly authorized and issued and
are fully paid and non-assessable.


 


6.8.                              ERISA.
The Unfunded Liabilities of all Single Employer Plans do not in the aggregate exceed
$1,000,000. Neither it nor any other member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal liability to
Multiemployer Plans in excess of $250,000 in the aggregate. Each Plan complies
in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan, neither
it nor any other members of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.


 


6.9.                              Accuracy
of Information. All factual information furnished by or on behalf of such
entity or any of its Subsidiaries to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of such entity or any of its Subsidiaries to the
Administrative Agent or any Lender will be, true and accurate (taken as a
whole) on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time.


 


6.10.                        Margin
Stock. It does not hold any margin stock (as defined in Regulation U).


 


6.11.                        Material
Agreements. Neither it nor any Subsidiary is a party to any agreement or
instrument or subject to any charter or other corporate restriction which could
have a Material Adverse Effect. Neither it nor any Subsidiary is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to 


 


31

















 


which it is a party, which default could have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.


 


6.12.                        Compliance
With Laws. It and its Subsidiaries have complied, to the best of their
knowledge, with all applicable statutes, rules, regulations, orders and restrictions
of any domestic or foreign government or any instrumentality or agency thereof,
having jurisdiction over the conduct of their respective businesses or the
ownership of their respective Property. Neither it nor any Subsidiary has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable federal, state and local
environmental, health and safety statutes and regulations or the subject of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could have a Material
Adverse Effect.


 


6.13.                        Ownership
of Properties. On the date of this Agreement, it and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section 7.15,
to all of the Property and assets reflected in the financial statements as
owned by it.


 


6.14.                        Investment
Company Act. Neither it nor any Subsidiary is an “investment company” or a
company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.


 


6.15.                        Public
Utility Holding Company Act. Neither it nor any Subsidiary is a “holding company”
or a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company”, within the
meaning of the Public Utility Holding Company Act of 1935, as amended.


 


6.16.                        Solvency.
(i) Immediately after the Closing Date and immediately following the
making of each Loan and after giving effect to the application of the proceeds
of such Loans, (a) the fair value of the assets of the General Partner,
the Borrower and their Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent or
otherwise, of the General Partner, the Borrower and their Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of
the General Partner, the Borrower and their Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of the General Partner, the Borrower and their Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute
and matured; (c) the General Partner, the Borrower and their Subsidiaries
on a consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the General Partner, the Borrower and their
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.


 


(ii)                                  It
does not intend to, or to permit any of its Subsidiaries to, and does not
believe that it or any of its Subsidiaries will, incur debts beyond its ability
to pay such debts as they mature, taking into account the timing of and amounts
of cash to be received by it or any such 


 


32

















 


Subsidiary and the
timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.


 


6.17.                        Insurance.
It and its Subsidiaries carry insurance on their Projects with financially
sound and reputable insurance companies, in such amounts, with such deductibles
and covering such risks as are at least comparable to the coverage maintained
by institutional owners of similar properties as evidenced by insurance
certificates provided to Administrative Agent, including, without limitation:


 


(i)                                                             Property
and casualty insurance (including coverage for flood and other water damage for
any Project located within a 100-year flood plain) in the amount of the
replacement cost of the improvements at the Project;


 


(ii)                                                          Loss
of rental income insurance in the amount not less than one year’s gross
revenues from the Projects; and


 


(iii)                                                       Comprehensive
general liability insurance in the amount of $20,000,000 per occurrence.


 


6.18.                        REIT
Status. The General Partner is in good standing on the New York Stock
Exchange, is qualified as a real estate investment trust and currently is in
compliance with all applicable provisions of the Code applicable to
qualification as a real estate investment trust.


 


6.19.                        Environmental
Matters. Each of the following representations and warranties is true and
correct on and as of the Closing Date except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:


 


(i)                                                             To
the best knowledge of, respectively, the General Partner or the Borrower, the
Projects of such entity and its Subsidiaries do not contain, and have not
previously contained, any Materials of Environmental Concern in amounts or
concentrations which constitute or constituted a violation of, or could
reasonably give rise to liability under, Environmental Laws. In making this
statement, General Partner and Borrower are assuming (except to the extent that
either of them has actual knowledge to the contrary) that any Person handling
any Materials of Environmental Concern at any Project will do so in a
reasonable manner and in accordance with all legal requirements.


 


(ii)                                                          To
the best knowledge of such entity, the Projects of such entity and its
Subsidiaries and all operations at the Projects are in compliance, and have in
the last two years been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about the Projects of such entity
and its Subsidiaries, or violation of any Environmental Law with respect to the
Projects of such entity and its Subsidiaries.


 


33

















 


(iii)                                                       Neither
it nor any of its Subsidiaries has received from any governmental authority any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Projects, nor does it have knowledge or reason to
believe that any such notice will be received or is being threatened, nor has
any proceeding been brought or complaint filed by any party alleging any such
violation, non-compliance, liability or potential liability.


 


(iv)                                                      To
the best knowledge of such entity, Materials of Environmental Concern have not
been transported or disposed of from the Projects of such entity and its
Subsidiaries in violation of, or in a manner or to a location which could
reasonably give rise to liability under, Environmental Laws, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Projects of such entity and its Subsidiaries in
violation of, or in a manner that could give rise to liability under, any
applicable Environmental Laws.


 


(v)                                                         No
judicial proceedings or governmental or administrative action is pending, or,
to the knowledge of such entity, threatened, under any Environmental Law to
which such entity or any of its Subsidiaries is or will be named as a party
with respect to the Projects of such entity and its Subsidiaries, nor to
Borrower’s knowledge are there any consent decrees or other decrees, consent
orders, administrative order or other orders, or other administrative of
judicial requirements outstanding under any Environmental Law with respect to
the Projects of such entity and its Subsidiaries.


 


(vi)                                                      To
the best knowledge of such entity, there has been no release or threat of
release of Materials of Environmental Concern at or from the Projects of such
entity and its Subsidiaries, or arising from or related to the operations of
such entity and its Subsidiaries in connection with the Projects in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws.


 


6.20.                        Unencumbered
Assets. Schedule 3 hereto contains a complete and accurate description
of Unencumbered Assets as of the Closing Date and as supplemented from time to
time in connection with the delivery of a compliance certificate pursuant to Section 7.1
hereof, including the entity that owns each Unencumbered Asset. Any supplements
in connection with the delivery of a compliance certificate shall specifically
highlight the changes in Schedule 3. With respect to each Project
identified from time to time as an Unencumbered Asset, except to the extent
disclosed in writing to the Lenders and approved by the Required Lenders (which
approval shall not be unreasonably withheld), Borrower hereby represents and
warrants as follows except to the extent the failure of such representation and
warranty to be true would not materially adversely affect the use and operation
of such Project for its intended use or its marketability or value:


 


34

















 


6.20.1                  No portion of
any improvement on the Unencumbered Asset is located in an area identified by
the Secretary of Housing and Urban Development or any successor thereto as an
area having special flood hazards pursuant to the National Flood Insurance Act
of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any
successor law, or, if located within any such area, Borrower has obtained and
will maintain the insurance prescribed in Section 7.6 hereof.


 


6.20.2                  To the Borrower’s
knowledge, the Unencumbered Asset and the present use and occupancy thereof are
in material compliance with all applicable zoning ordinances (without reliance
upon adjoining or other properties except to the extent allowed by applicable
laws), building codes, land use and Environmental Laws, and other similar laws
(“Applicable Laws”).


 


6.20.3                  The Unencumbered
Asset is served by all utilities required for the current or contemplated use
thereof. All utility service is provided by public utilities and the
Unencumbered Asset has accepted or is equipped to accept such utility service.


 


6.20.4                  All public roads
and streets necessary for service of and access to the Unencumbered Asset for
the current or contemplated use thereof have been completed, are serviceable
and all-weather and are physically and legally open for use by the public.


 


6.20.5                  The Unencumbered
Asset is served by public water and sewer systems or, if the Unencumbered Asset
is not serviced by a public water and sewer system, such alternate systems are
adequate and meet, in all material respects, all requirements and regulations
of, and otherwise complies in all material respects with, all Applicable Laws
with respect to such alternate systems.


 


6.20.6                  Borrower is not
aware of any latent or patent structural or other significant deficiency of the
Unencumbered Asset. The Unencumbered Asset is free of damage and waste that
would materially and adversely affect the value of the Unencumbered Asset other
than damage which has been covered by insurance, is in good repair and there is
no material deferred maintenance other than ordinary deferred maintenance given
the age of the asset for which adequate reserves exist. The Unencumbered Asset
is free from material damage caused by fire or other casualty. There is no
pending or, to the actual knowledge of Borrower threatened condemnation
proceedings affecting the Unencumbered Asset, or any material part thereof.


 


6.20.7                  Except for
matters insured by title insurance, all improvements on the Unencumbered Asset
lie within the boundaries and building restrictions of the legal description of
record of the Unencumbered Asset, no such improvements encroach upon easements
benefiting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset and
no improvements on adjoining properties encroach upon the Unencumbered Asset or
easements benefiting the Unencumbered Asset other than encroachments that do
not materially adversely affect the use or occupancy of the Unencumbered Asset.
All material amenities, access routes or other items that materially benefit
the Unencumbered Asset are under direct control of Borrower, constitute
permanent easements that benefit 


 


35

















 


all or part of the Unencumbered Asset or are
public property, and the Unencumbered Asset, by virtue of such easements or
otherwise, is contiguous to a physically open, dedicated all weather public
street, and has the necessary permits for ingress and egress.


 


6.20.8                  There are no
material delinquent taxes, ground rents, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, or other outstanding
charges affecting the Unencumbered Asset except to the extent such items are
being contested in good faith and as to which adequate reserves have been provided.


 


A breach of any of the
representations and warranties contained in this Section 6.20 with
respect to a Project shall disqualify such Project from being an Unencumbered
Asset for so long as such breach continues (unless otherwise approved by the Required
Lenders) but shall not constitute a Default (unless the elimination of such
Property as an Unencumbered Asset results in a Default under one of the other
provisions of this Agreement).


 


6.21.                        Plan
Assets; Prohibited Transactions. Neither Borrower, any Subsidiary nor any
member of the Controlled Group maintains any Plan. The Borrower is not an
entity deemed to hold “plan assets” within the meaning of 29 C.F.R. § 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section 4975
of the Code), and neither the execution of this Agreement nor the making of
Credit Extensions hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.


 


6.22.                        Winkler
Portfolio. Borrower owns 100% of the membership interests in WTM Master
Land, LLC and WTM Master Building, LLC, and WTM Master Building, LLC owns 100%
of the membership interests in TransDulles Buildings, LLC, Westfields Buildings
II, LLC, and Mark Center Buildings II, LLC, Schedule 4 correctly sets
forth as of the date hereof the projects comprising the Winkler Portfolio and
the organizational chart for the entities that directly or indirectly own
interests in such projects. 


 


ARTICLE VII


 


COVENANTS


 


During the term of this
Agreement, unless the Required Lenders shall otherwise consent in writing:


 


7.1.                              Financial
Reporting. The General Partner and the Borrower will maintain, for
themselves and each Subsidiary, a system of accounting established and
administered in accordance with GAAP, and furnish to the Lenders:


 


(i)                                                                                 As
soon as available, but in any event not later than 50 days after the close of
each fiscal quarter, for the General Partner (consolidated with the Borrower
and their Subsidiaries), an unaudited consolidated balance sheet as of the
close of each such period and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the General Partner, the
Borrower and their Subsidiaries for such period and 


 


36

















 


the portion of the fiscal year through the end of such
period, setting forth in each case in comparative form the figures for the
previous year, all certified by the General Partner’s chief financial officer
or chief accounting officer;


 


(ii)                                                                              As
soon as available, but in any event not later than 50 days after the close of
each fiscal quarter, for the General Partner, the Borrower and their
Subsidiaries, related reports in form and substance satisfactory to the
Lenders, all certified by the entity’s chief financial officer or chief
accounting officer, including a statement of Funds From Operations, a
description of Unencumbered Assets, a statement of Guarantee Obligations,
including a description of any guaranties of Investment Affiliate Debt excluded
from Guarantee Obligations pursuant to the definition thereof, along with a
certification that the conditions for exclusion are met and such back-up
information as may be requested by Administrative Agent, a listing of
capital expenditures, a report listing and describing all newly acquired
Projects, including their Property Operating Income, cost and secured or
unsecured Indebtedness assumed in connection with such acquisition, if any,
summary Project information for all Projects, including, without limitation,
their Property Operating Income, occupancy rates, square footage, property type
and date acquired or built, and such other information as may be
requested;


 


(iii)                                                                           As
soon as available, but in any event not later than 90 days after the close of
each fiscal year, for the General Partner (consolidated with the Borrower and
their Subsidiaries), audited financial statements, including a consolidated
balance sheet as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, reported on by KPMG LLP, or the other top four accounting firms
by size (or other independent certified public accountants of nationally
recognized standing acceptable to Administrative Agent) without a “going
concern” or like qualification or exception, or qualification arising out of
the scope of the audit;


 


(iv)                                                                          As
soon as available, but in any event not later than 90 days after the close of
each fiscal year, for the General Partner, the Borrower and their Subsidiaries,
related reports in form and substance satisfactory to the Lenders,
certified by the entity’s chief financial officer or chief accounting officer,
including reports containing taxable income and Property Operating Income for
each individual property;


 


(v)                                                                             Together
with the quarterly and annual financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit E hereto
signed by the General Partner’s and the Borrower’s chief financial officers or
chief accounting officers showing the calculations and computations necessary
to determine compliance with this Agreement and 


 


37

















 


stating that no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature and status
thereof;


 


(vi)                                                                          As
soon as possible and in any event within 10 days after the General Partner or
the Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the chief financial officer of such entity,
describing said Reportable Event and the action which such entity proposes to
take with respect thereto;


 


(vii)                                                                       As
soon as possible and in any event within 10 days after receipt by the General
Partner or the Borrower, a copy of (a) any notice or claim to the effect
that the General Partner, the Borrower or any of their Subsidiaries is or may be
liable to any Person as a result of the release by such entity, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or regulation by
the General Partner or the Borrower or any of their Subsidiaries, which, in
either case, could have a Material Adverse Effect;


 


(viii)                                                                    Promptly
upon the furnishing thereof to the shareholders of the General Partner or the
partners of the Borrower, copies of all financial statements, reports and proxy
statements so furnished;


 


(ix)                                                                            Promptly
upon the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other reports and any other public information which the
General Partner, the Borrower or any of their Subsidiaries files with the
Securities Exchange Commission;


 


(x)                                                                               Promptly
upon the distribution thereof to the press or the public, copies of all press
releases; and


 


(xi)                                                                            Such
other information (including, without limitation, financial statements for the
Borrower and non-financial information) as the Administrative Agent or any
Lender may from time to time reasonably request.


 


If any information which
is required to be furnished to the Lenders under this Section 7.1
is required by law or regulation to be filed by the Borrower with a government
body on an earlier date, then the information required hereunder shall be
furnished to the Lenders at such earlier date. If the foregoing information is
required to be delivered by the Borrower pursuant to the Revolving Credit
Agreement, then so long as each Lender hereunder is also a Lender under the
Revolving Credit Agreement, Borrower does not need to separately deliver such
information under this Agreement.


 


7.2.                              Use
of Proceeds. The General Partner and the Borrower will, and will cause each
of their Subsidiaries to, use the proceeds of the Advances for paying a portion
of the cost of acquiring the Winkler Portfolio or for general corporate
purposes. The General Partner and the Borrower will not, nor will they permit
any Subsidiary to, use any of the proceeds of the Advances (i) to purchase
or carry any “margin stock” (as defined in Regulation G or U) or (ii) to 


 


38

















 


fund any purchase of, or offer for, any Capital Stock
of any Person, unless such Person has consented to such offer prior to any
public announcements relating thereto and the Required Lenders have consented
to such use of the proceeds of such Advance.


 


7.3.                              Notice
of Default. The General Partner and the Borrower will give, and will cause
each of their Subsidiaries to give, prompt notice in writing to the Lenders of
the occurrence of (i) any Default or Unmatured Default and (ii) of
any other development, financial or otherwise, which could have a Material
Adverse Effect.


 


7.4.                              Conduct
of Business. The General Partner and the Borrower will do, and will cause
each of their Subsidiaries to do, all things necessary to remain duly
incorporated and/or duly qualified, validly existing and in good standing as a
real estate investment trust, corporation, general partnership or limited
partnership, as the case may be, in its jurisdiction of
incorporation/formation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted and to carry
on and conduct its businesses in substantially the same manner as it is
presently conducted and, specifically, neither the General Partner, the
Borrower nor their respective Subsidiaries will undertake any business other
than the acquisition, development, ownership, management, operation and leasing
of office, industrial and retail properties and ancillary businesses
specifically related thereto, including its third party construction business except
that the Borrower and its Subsidiaries may invest in (i) land, (ii) non-office/industrial/retail
property holdings, (iii) stock holdings, (iv) mortgages (v) passive
non-real estate investments and (vi) joint ventures and partnerships, provided
that the total investment in the first category (land) shall not exceed 13% of
Market Capitalization, the total investment in any one of the categories (ii) through
(v) does not exceed ten percent (10%) of Market Capitalization, the total
investment in the sixth category (joint ventures and partnerships) does not
exceed 20% of Market Capitalization, and the total investment in all of the
foregoing investment categories in the aggregate is less than or equal to
twenty-five percent (25%) of Market Capitalization. Notwithstanding the
foregoing Borrower shall be permitted to make investments in assets based in
Canada or Mexico provided the leases on those assets are paid in United States
Dollars or Canadian Dollars and Borrower’s investment in same shall not exceed
10% of Market Capitalization. For the purposes of this Section 7.4,
joint ventures and partnerships shall be valued in accordance with GAAP,
non-revenue generating investments such as land and stock holdings shall be
valued at the lower of acquisition cost or market value, and the value of all
other investments shall be determined by capitalizing Property Operating Income
from these assets at a rate of 8.25%. In the event of any disagreement as to
how to value an investment, the judgment of the Administrative Agent shall
prevail.


 


7.5.                              Taxes.
The General Partner and the Borrower will pay, and will cause each of their
Subsidiaries to pay, when due all taxes, assessments and governmental charges
and levies upon them of their income, profits or Projects, except those which
are being contested in good faith by appropriate proceedings and with respect
to which adequate reserves have been set aside.


 


7.6.                              Insurance.
The General Partner and the Borrower will, and will cause each of their
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice and the representation made
by Borrower in Section 6.17, and the 


 


39

















 


General Partner and the Borrower will furnish to any
Lender upon request full information as to the insurance carried.


 


7.7.                              Compliance
with Laws. The General Partner and the Borrower will, and will cause each
of their Subsidiaries to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
they may be subject.


 


7.8.                              Maintenance
of Properties. The General Partner and the Borrower will, and will cause
each of their Subsidiaries to, do all things necessary to maintain, preserve,
protect and keep its Property in good repair, working order and condition, and
make all necessary and proper repairs, renewals and replacements so that their
businesses carried on in connection therewith may be properly conducted at
all times.


 


7.9.                              Inspection.
The General Partner and the Borrower will, and will cause each of their
Subsidiaries to, permit the Lenders, by their respective representatives and
agents, to inspect any of the Projects, corporate books and financial records
of the General Partner, the Borrower and each of their Subsidiaries, to examine
and make copies of the books of accounts and other financial records of the
General Partner, the Borrower and each of their Subsidiaries, and to discuss
the affairs, finances and accounts of the General Partner, the Borrower and
each of their Subsidiaries, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Lenders may designate.


 


7.10.                        Maintenance
of Status. The General Partner shall at all times (i) remain a
corporation listed and in good standing on the New York Stock Exchange, and (ii) maintain
its status as a real estate investment trust in compliance with all applicable
provisions of the Code.


 


7.11.                        Dividends.
Provided there is not a continuing Default under Section 8.1 or Section 8.2,
and there is not a continuing Default under Section 8.3 relating to
a breach of any of the covenants contained in Section 7.20, the
General Partner and its Subsidiaries shall be permitted to declare and pay
dividends on their Capital Stock from time to time in amounts determined by the
General Partner, provided, however, that subject to the terms of
the next sentence, in no event shall the General Partner or any of its
Subsidiaries declare or pay dividends on their Capital Stock if dividends paid
in any period of four fiscal quarters, in the aggregate, would exceed 95% of Funds
From Operations for such period. Notwithstanding the foregoing, the General
Partner shall be permitted to distribute whatever amount of dividends is
necessary to maintain its tax status as a real estate investment trust, provided
there is not a continuing Default under Sections 8.1 or 8.2.


 


7.12.                        Merger;
Sale of Assets. The General Partner and the Borrower will not, nor will
they permit any of their Subsidiaries to, enter into any merger, consolidation,
reorganization or liquidation or transfer or otherwise dispose of all or a
Substantial Portion of their Property, except for such transactions that occur
between the General Partner, the Borrower and/or the Wholly-Owned Subsidiaries
of Borrower or General Partner, provided, however, the General
Partner or the Borrower may merge with or acquire other companies as
partnerships so long as:


 


40

















 


(i)                                                             After
giving effect to such merger or acquisition, no provision of this Agreement
will have been violated;


 


(ii)                                                          the
General Partner or the Borrower will be the surviving entity; and


 


(iii)                                                       such
merger is not accomplished through a hostile takeover.


 


The Borrower will notify
all of the Lenders of all material acquisitions, dispositions, mergers or asset
purchases regardless of whether or not the Required Lenders must first give
their written consent.


 


7.13.                        General
Partner’s Ownership and Control of Borrower. The General Partner will not
relinquish, and will not allow any reduction in, its ownership or control of
the Borrower and will not allow or suffer to exist any pledge, other
encumbrance or the conversion to limited partnership interests of any of the
general partnership interests in the Borrower; provided that (i) the
General Partner’s ownership of the Borrower, including any interests held by
Wholly Owned Subsidiaries of the General Partner, may be reduced to 67% by
the issuance of additional limited partnership units, so long as the General
Partner remains the sole general partner of Borrower and (ii) the General Partner
shall not transfer any Partnership interest to a Wholly Owned Subsidiary of the
General Partner unless such Subsidiary is a Subsidiary Guarantor and does not
own any material assets other than its partnership interests in Borrower.


 


7.14.                        Sale
and Leaseback. The General Partner and the Borrower will not, nor will they
permit any of their Subsidiaries to, sell or transfer any of its Projects in
order to concurrently or subsequently lease as lessee such or similar Projects.


 


7.15.                        Liens.
The General Partner and the Borrower will not, nor will they permit any of
their Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on
the Property of the General Partner, the Borrower or any of their Subsidiaries,
except:


 


(i)                                                                         Liens
for taxes, assessments or governmental charges or levies on their Property if
the same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings
and for which adequate reserves shall have been set aside on their books;


 


(ii)                                                                      Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and
other similar liens arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;


 


(iii)                                                                   Liens
arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;


 


(iv)                                                                  Utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with 


 


41

















 


respect to properties of a similar character and which
do not in any material way affect the marketability of the same or interfere
with the use thereof in the business of the General Partner, the Borrower or
their Subsidiaries;


 


(v)                                                                     Liens
existing on the date hereof and described in Schedule 2 hereto; and


 


(vi)                                                                  Liens
arising in connection with any Indebtedness permitted hereunder to the extent
such Liens will not result in a violation of any of the provisions of this
Agreement.


 


Liens permitted pursuant
to this Section 7.15 shall be deemed to be “Permitted Liens”.


 


7.16.                        Affiliates.
The General Partner and the Borrower will not, nor will they permit any of
their Subsidiaries to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the General Partner’s, the Borrower’s
or such Subsidiary’s business and upon fair and reasonable terms no less
favorable to the General Partner, the Borrower or such Subsidiary than the
General Partner, the Borrower or such Subsidiary would obtain in a comparable
arms-length transaction.


 


7.17.                        Interest
Rate Hedging. The General Partner and the Borrower will not enter into or
remain liable upon, nor will they permit any Subsidiary to enter into or remain
liable upon, any agreements, devices or arrangements designed to protect at
least one of the parties thereto from the fluctuations of interest rates,
exchange rates or forward rates applicable to such party’s assets, liabilities
or exchange transactions, including, but not limited to, interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options unless
such agreement, device or arrangement was entered into by the General Partner
or the Borrower in the ordinary course of its business for the purpose of hedging
interest rate risk to the General Partner or the Borrower.


 


7.18.                        Variable
Interest Indebtedness. The General Partner shall not, as of the last day of
any fiscal quarter, permit the outstanding principal balance of Indebtedness of
the General Partner and the Borrower and their Subsidiaries which bears
interest at an interest rate that is not fixed through the maturity date of
such Indebtedness to exceed $1,600,000,000 which amount can be up to
$1,800,000,000 for up to two quarters during the life of the Facility.


 


7.19.                        Consolidated
Net Worth. The General Partner, as of the last day of any fiscal quarter,
shall maintain a Consolidated Net Worth of not less than the sum of (i) $2,750,000,000
plus (ii) seventy percent (70%) of the aggregate proceeds received by the
General Partner (net of customary related fees and expenses) in connection with
any offering of stock in the General Partner or partnership interests in the Borrower
after September 30, 2005.


 


7.20.                        Indebtedness
and Cash Flow Covenants. The General Partner on a consolidated basis with
the Borrower and their Subsidiaries shall not, as of the last day of any fiscal
quarter, permit:


 


42

















 


(i)                                                                              the
ratio of Adjusted EBITDA to Fixed Charges to be less than 1.60 to 1.0 for the
preceding 12 full calendar months;


 


(ii)                                                                           Consolidated
Total Indebtedness to exceed sixty percent (60%) of Market Capitalization; provided
that such amount may be increased to sixty-five (65%) for no more than two
quarters during the term of this Agreement;


 


(iii)                                                                        the
ratio obtained by dividing:  (a) the
Property Operating Income from all Unencumbered Assets by (b) interest on
Consolidated Unsecured Indebtedness to be less than 2.00 to 1.0 for the quarter
then ended; or


 


(iv)                                                                       Consolidated
Secured Indebtedness to exceed twenty-five percent (25%) of Market
Capitalization.


 


7.21.                        Environmental
Matters. The General Partner and the Borrower will and will cause each of
their Subsidiaries to:


 


(i)                       comply
with, and use its commercially reasonable efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and use its best efforts to ensure that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect;


 


(ii)                    conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except to the extent
that (a) the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect, or (b) the General Partner has
determined in good faith that contesting the same is not in the best interests
of the General Partner, the Borrower and their Subsidiaries and the failure to
contest the same could not be reasonably expected to have a Material Adverse
Effect; or


 


(iii)                 defend, indemnify
and hold harmless the Administrative Agent and each Lender, and their
respective employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of, noncompliance with
or liability under any Environmental Laws applicable to the 


 


43

















 


operations of the General
Partner, the Borrower, their Subsidiaries or the Projects, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, attorney’s and consultant’s fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor; and


 


(iv)                prior to the
acquisition of a new Project after the Closing Date, perform or cause to
be performed an environmental investigation, which investigation shall at a
minimum comply with the Borrower’s standard specifications and procedures which
shall be subject to the approval of the Administrative Agent, which shall not
be unreasonably withheld. In connection with any such investigation, Borrower
shall cause to be prepared a report of such investigation, to be made available
to any Lenders upon request, for informational purposes and to assure
compliance with the specifications and procedures.


 


The indemnity
contained in (iii) above shall continue in full force and effect
regardless of the termination of this Agreement. In connection with any
investigation pursuant to (iv) above, Borrower shall cause to be prepared
a report of such investigation, to be made available to any Lenders upon
request, for informational purposes and to assure compliance with the
specifications and procedures.


 


7.22.                        Intentionally
Omitted.


 


7.23.                        Borrower’s
Partnership Agreement. The General Partner shall not consent to any changes
to Borrower’s partnership agreement, other than changes in the ordinary course
of business, without providing prior written notice to the Administrative Agent.
The General Partner shall not consent to any change to Borrower’s Partnership
Agreement that would be materially adverse to the Lenders without obtaining the
prior written consent of the Administrative Agent.


 


7.24.                        Intentionally
Omitted.


 


7.25.                        Notice
of Rating Change. The Borrower shall notify the Administrative Agent
promptly if there is any change in the long term unsecured debt rating from
Moody’s or Fitch, of either the General Partner or the Borrower.


 


ARTICLE VIII


 


DEFAULTS


 


 


The occurrence of any one
or more of the following events shall constitute a Default:


 


8.1                                 Nonpayment
of any principal payment on any Note when due.


 


44

















 


8.2                                 Nonpayment
of interest upon any Note or other payment Obligations under any of the Loan
Documents within five (5) Business Days after the same becomes due.


 


8.3                                 The
breach of any of the terms or provisions of Sections 7.2, 7.10
through 7.20 and 7.23.


 


8.4                                 Any
representation or warranty made or deemed made by or on behalf of the General
Partner, the Borrower or any of their Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Loan, or
any certificate or information delivered in connection with this Agreement or
any other Loan Document shall be untrue or inaccurate in any material respect on
the date as of which made.


 


8.5                                 The
breach (other than a breach which constitutes a Default under Section 8.1,
8.2, 8.3 or 8.4) of any of the terms or provisions of this
Agreement which is not remedied within thirty (30) days after written notice
from the Administrative Agent or any Lender.


 


8.6                                 Failure
of the General Partner, the Borrower or any of their Subsidiaries to pay when
due any Indebtedness, other than nonrecourse debt and the debt hereunder, aggregating
in excess of $10,000,000 and such failure shall continue after the applicable
grace period, if any, specified in any agreement or instrument relating to such
Indebtedness.


 


8.7                                 The
General Partner, the Borrower or any Subsidiary having more than $10,000,000 of
Equity Value shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make
an assignment for the benefit of creditors, (iii) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion of
its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set forth
in this Section 8.7, (vi) fail to contest in good faith any
appointment or proceeding described in Section 8.8 and maintain
adequate reserves for such contest in accordance with GAAP or (vii) not
pay, or admit in writing its inability to pay, its debts generally as they
become due.


 


8.8                                 A
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the General Partner, the Borrower or any Subsidiary having more than
$10,000,000 of Equity Value or any Substantial Portion of its Property, or a
proceeding described in Section 8.7(iv) shall be instituted
against the General Partner, the Borrower or any such Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) consecutive days.


 


8.9                                 Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each a “Condemnation”), all
or any portion of the Projects of the Borrower and its Subsidiaries which, when
taken together with all other Property


 


45






 















 


of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control
of, during the twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion of their Property.


 


8.10         The General
Partner, the Borrower or any of their Subsidiaries shall fail within sixty (60)
days to pay, bond or otherwise discharge any judgments or orders for the
payment of money in an amount which, when added to all other judgments or
orders outstanding against the General Partner, the Borrower or any Subsidiary
would exceed $10,000,000 in the aggregate, which have not been stayed on appeal
or otherwise appropriately contested in good faith, with adequate reserves
therefor having been maintained in accordance with GAAP.


 


8.11         The General
Partner, the Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the General Partner, the Borrower or any other member of the Controlled Group
as withdrawal liability (determined as of the date of such notification),
exceeds $1,000,000 or requires payments exceeding $100,000 per annum.


 


8.12         The General
Partner, the Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title
IV of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the General Partner, the Borrower and the other members
of the Controlled Group (taken as a whole) to all Multiemployer Plans which are
then in reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the respective plan
years of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding $1,000,000.


 


8.13         Failure to
remediate within the time period permitted by law or governmental order, after
all administrative hearings and appeals have been concluded (or within a reasonable
time in light of the nature of the problem if no specific time period is so
established), material environmental problems related to Projects of the
Borrower and its Subsidiaries if the affected Projects have an aggregate book
value in excess of $20,000,000.


 


8.14         The
occurrence of any default under any Loan Document or the breach of any of the
terms or provisions of any Loan Document, which default or breach continues
beyond any period of grace therein provided.


 


8.15         The
revocation or attempted revocation of the Guaranty.


 


8.16         The breach
by the Borrower or any Subsidiary of any term, provision or condition contained
in any Rate Management Transaction or any transaction of the type described in
the definition of “Rate Management Transaction,” whether or not any Lender or
Affiliate of a Lender is a party thereto, which continues beyond any applicable
grace period.


 


8.17         The
occurrence of a Default under and as defined in the Revolving Credit Agreement.


 


46

















 


ARTICLE IX


 


ACCELERATION, WAIVERS,
AMENDMENTS AND REMEDIES


 


9.1.          Acceleration.  If any Default described in Section 8.7 or
8.8 occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part
of the Administrative Agent or any Lender. 
If any other Default occurs, the Administrative Agent may and will if
directed by the Required Lenders, terminate or suspend the obligations of the
Lenders to make Loans hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives.


 


If, within thirty (30) days after acceleration of the
maturity of the Obligations or termination of the obligations of the Lenders to
make Loans hereunder as a result of any Default (other than any Default as
described in Section 8.7 or 8.8 with respect to the Borrower) and
before any judgment or decree for the payment of the Obligations shall have
been obtained or entered, the Required Lenders (in their sole discretion) shall
so direct, the Administrative Agent shall, by notice to the Borrower, rescind
and annul such acceleration and/or termination.


 


9.2.          Amendments.  Subject to the provisions of this Article IX,
the Required Lenders (or the Administrative Agent with the consent in writing
of the Required Lenders), the Borrower and the General Partner may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of
all Lenders:


 


(i)                    Extend
the Facility Termination Date or forgive all or any portion of the principal
amount of any Loan or accrued interest thereon, reduce the Applicable Margins
on the underlying interest rate options or otherwise modify or add to such Applicable
Margins or interest rate options, or extend the time of payment of any of the
Obligations.


 


(ii)                   Release
the General Partner from the Guaranty, or materially modify the Guaranty or
waive a material provision of the Guaranty.


 


(iii)                  Reduce
the percentage specified in the definition of Required Lenders.


 


(iv)                  Permit
the Borrower to assign or allow another Person to assume its rights under this
Agreement.


 


(v)                   Amend
this Section 9.2.


 


(vi)                  Amend
Section 2.23 such that payments that are now required to be applied in
accordance with the Funded Percentages of the Lenders shall be applied in any
other manner.


 


47

















 


No amendment of any provision of this Agreement
relating to the Administrative Agent shall be effective without the written
consent of the Administrative Agent, and no amendment increasing the Commitment
of any Lender shall be effective without the written consent of such Lender.


 


9.3.          Preservation
of Rights.  No delay or omission of
the Lenders or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence.  Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 9.2,
and then only to the extent in such writing specifically set forth.  All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.


 


ARTICLE X


 


GENERAL PROVISIONS


 


 


10.1.        Survival
of Representations.  All
representations and warranties of the Borrower contained in this Agreement
shall survive delivery of the Notes and the making of the Loans herein
contemplated.


 


10.2.        Governmental
Regulation.  Anything contained in
this Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.


 


10.3.        Headings.  Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.


 


10.4.        Entire
Agreement.  The Loan Documents embody
the entire agreement and understanding among the Borrower, the General Partner,
the Administrative Agent and the Lenders and supersede all prior commitments,
agreements and understandings among the Borrower, the Administrative Agent and
the Lenders relating to the subject matter thereof, except for the agreement of
the Borrower to pay certain fees to the Administrative Agent and the agreement
of the Administrative Agent to pay certain fees to the Lenders.


 


10.5.        Several
Obligations; Benefits of this Agreement. 
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such).  The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder.  This Agreement
shall not be construed so as to


 


48

















 


confer any right
or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.


 


10.6.        Expenses;
Indemnity; Damage Waiver.


 


(a)           Costs
and Expenses.  The Borrower shall pay
(i) all reasonable out of pocket expenses incurred by the Administrative Agent
and its Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all out of pocket expenses incurred by the Administrative
Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender ), and shall pay all fees
and time charges for attorneys who may be employees of the Administrative Agent
or any Lender, in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or (B) in connection with the Loans made
hereunder, including all such out of pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.


 


(b)           Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or the use or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any environmental liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto, in all cases, whether
or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or


 


49

















 


under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.


 


(c)           Reimbursement
by Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the Administrative
Agent (or any sub-agent thereof), or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), or such Related Party, as the case may be, such Lender’s Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are several and not joint.


 


(d)           Waiver
of Consequential Damages, Etc.  To
the fullest extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


(e)           Payments.  All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.


 


(f)            Survival.  The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, and
the repayment, satisfaction or discharge of all the other Obligations.


 


10.7.        Numbers
of Documents.  All statements,
notices, closing documents, and requests hereunder shall be furnished to the
Administrative Agent with sufficient counterparts so that the Administrative
Agent may furnish one to each of the Lenders.


 


10.8.        Accounting.  Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP in a manner
consistent with that used in preparing the financial statements referred to in Section 6.4.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and the


 


50

















 


Borrower, the
Administrative Agent or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Loan Parties shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders), provided that,
until so amended such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and the Borrower shall
provide to the Administrative Agent and the Lenders reconciliation statements
showing the difference in such calculation, together with the delivery of
monthly, quarterly and annual financial statements required hereunder.


 


10.9.        Severability
of Provisions.  Any provision in any
Loan Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.


 


10.10.      Nonliability
of Lenders.  The relationship between
the General Partner and the Borrower, on the one hand, and the Lenders, the
Arranger and the Administrative Agent, on the other, shall be solely that of
borrower and lender.  Neither the
Administrative Agent, the Arranger, nor any Lender shall have any fiduciary
responsibilities to the General Partner and the Borrower.  Neither the Administrative Agent, the
Arranger, nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower’s business or operations.


 


10.11.      Publicity.  The Lenders shall have the right to do a
tombstone publicizing the transaction contemplated hereby without the consent
of the Borrower or General Partner.


 


10.12.      CHOICE
OF LAW.  THE LOAN DOCUMENTS (OTHER
THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.


 


10.13.      CONSENT
TO JURISDICTION.  THE GENERAL PARTNER
AND THE BORROWER EACH HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE
LOAN DOCUMENTS AND THE GENERAL PARTNER AND THE BORROWER EACH HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE GENERAL
PARTNER OR THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.  ANY JUDICIAL PROCEEDING BY THE GENERAL
PARTNER OR THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY


 


51

















 


AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.


 


10.14.      WAIVER
OF JURY TRIAL.  THE GENERAL PARTNER,
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.


 


10.15.      Agent
Responsibilities.  Borrower, the
Administrative Agent and each Lender acknowledges and agrees that the
obligations of the Administrative Agent (collectively, the “Other Agents”)
hereunder shall be limited to those obligations that are expressly set forth
herein, if any, or in any other written agreement with such parties, and the
Other Agents shall not be required to take any other action or assume any
liability except as may be required in their capacity as a Lender
hereunder.  Borrower, the Administrative
Agent and each Lender agrees that the indemnifications set forth herein for the
benefit of the Administrative Agent shall also run to the benefit of each Other
Agent to the extent such Other Agent incurs any loss, cost or damage arising
from its agency capacity hereunder.


 


10.16.      USA
PATRIOT ACT NOTIFICATION.  The
following notification is provided to Borrower pursuant to Section 326 of the
USA Patriot Act of 2001, 31 U.S.C. Section 5318:


 


IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A
NEW ACCOUNT.  To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit,
or other financial services product. 
What this means for Borrower:  When
Borrower opens an account, if Borrower is an individual, Administrative Agent
and the Lenders will ask for Borrower’s name, residential address, tax
identification number, date of birth, and other information that will allow
Administrative Agent and the Lenders to identify Borrower, and, if Borrower is
not an individual, Administrative Agent and the Lenders will ask for Borrower’s
name, tax identification number, business address, and other information that
will allow Administrative Agent and the Lenders to identify Borrower.  Administrative Agent and the Lenders may also
ask, if Borrower is an individual, to see Borrower’s driver’s license or other
identifying documents, and, if Borrower is not an individual, to see Borrower’s
legal organizational documents or other identifying documents.


 


ARTICLE XI


 


THE ADMINISTRATIVE AGENT
AND AGREEMENTS AMONG LENDERS


 


11.1.        Appointment
and Authority.  Each of the Lenders
hereby irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and


 


52

















 


to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  The provisions of this Article
are solely for the benefit of the Administrative Agent and the Lenders, and the
Borrower shall not have rights as a third party beneficiary of any of such
provisions.


 


11.2.        Rights
as a Lender.  The Person serving as
the Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity.  Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.


 


11.3.        Exculpatory
Provisions.  The Administrative Agent
shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. 
Without limiting the generality of the foregoing, the Administrative
Agent:


 


(a)           shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;


 


(b)           shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any
Loan Document or applicable law; and


 


(c)           shall not,
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any
action taken or not taken by it (i) with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 9.1 and 9.2) or
(ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrowers or a Lender.


 


The Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this


 


53

















 


Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.


 


11.4.        Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan,
that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.


 


11.5.        Delegation
of Duties.  The Administrative Agent
may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub
agents appointed by the Administrative Agent. 
The Administrative Agent and any such sub agent may perform any and all
of its duties and exercise its rights and powers by or through their respective
Related Parties.  The exculpatory
provisions of this Article shall apply to any such sub agent and to the Related
Parties of the Administrative Agent and any such sub agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.


 


11.6.        Resignation
of Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower.  Upon receipt
of any such notice of resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States.  If no
such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative Agent
shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security
held by the Administrative Agent on behalf of the Lenders under any of the Loan
Documents, the retiring


 


54

















 


Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.


 


11.7.        Non-Reliance
on Administrative Agent and Other Lenders. 
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


11.8.        No
Other Duties, Etc.  Anything herein
to the contrary notwithstanding, none of the Bookrunners, Arrangers or any
other Lender listed with a title on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative
Agent or a Lender hereunder.


 


11.9.        Administrative
Agent May File Proofs of Claim.  In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise


 


(a)           to file
and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due


 


55

















 


the Lenders, and
the Administrative Agent under this Agreement) allowed in such judicial
proceeding; and


 


(b)           to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under this
Agreement.


 


Nothing contained herein shall be deemed to authorize
the Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender to authorize
the Administrative Agent to vote in respect of the claim of any Lender in any
such proceeding.


 


11.10.      Collateral
and Guaranty Matters.  The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion,


 


(a)           to release
any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon payment in full of all Obligations (other than
contingent indemnification obligations), (ii) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other
Loan Document, or (iii) subject to Section 9.2, if approved, authorized or
ratified in writing by the Required Lenders;


 


(b)           to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 7.15(vi); and


 


(c)           to release
any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder.


 


Upon request by the Administrative Agent at any time,
the Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or items
of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 11.10.


 


11.11.      Notice
of Defaults.  If a Lender becomes
aware of a Default or Unmatured Default, such Lender shall notify the
Administrative Agent of such fact provided that the failure to give such notice
shall not create liability on the part of a Lender.  Upon receipt of such notice that a Default or
Unmatured Default has occurred, the Administrative Agent shall promptly notify
each of the Lenders of such fact.


 


56

















 


11.12.      Requests
for Approval.  If the Administrative
Agent requests in writing the consent or approval of a Lender, such Lender
shall respond and either approve or disapprove definitively in writing to the
Administrative Agent within ten Business Days (or sooner if such notice
specifies a shorter period for responses based on Administrative Agent’s good
faith determination that circumstances exist warranting its request for an
earlier response) after such written request from the Administrative
Agent.  If the Lender does not so
respond, that Lender shall be deemed to have approved the request.


 


11.13.      Copies
of Documents.  Within fifteen
Business Days after a request by a Lender to the Administrative Agent for
documents furnished to the Administrative Agent by the Borrower, the
Administrative Agent shall provide copies of such documents to such Lender.


 


11.14.      Defaulting
Lenders.  At such time as a Lender
becomes a Defaulting Lender, such Defaulting Lender’s right to vote on matters
which are subject to the consent or approval of the Required Lenders, each
affected Lender or all Lenders shall be immediately suspended until such time
as the Lender is no longer a Defaulting Lender, except that the amount of the
Commitment of the Defaulting Lender may not be changed without its
consent.  If a Defaulting Lender has
failed to fund its pro rata share of any Advance and until such time as such
Defaulting Lender subsequently funds its pro rata share of such Advance, all
Obligations owing to such Defaulting Lender hereunder shall be subordinated in
right of payment, as provided in the following sentence, to the prior payment
in full of all principal of, interest on and fees relating to the Loans funded
by the other Lenders in connection with any such Advance in which the
Defaulting Lender has not funded its pro rata share (such principal, interest
and fees being referred to as “Senior Loans” for the purposes of this
section).  All amounts paid by the
Borrower or the Guarantor and otherwise due to be applied to the Obligations
owing to such Defaulting Lender pursuant to the terms hereof shall be distributed
by the Administrative Agent to the other Lenders in accordance with their
respective pro rata shares (recalculated for the purposes hereof to exclude the
Defaulting Lender) until all Senior Loans have been paid in full.  After the Senior Loans have been paid in full
equitable adjustments will be made in connection with future payments by the
Borrower to the extent a portion of the Senior Loans had been repaid with
amounts that otherwise would have been distributed to a Defaulting Lender but
for the operation of this Section 11.15.  This provision governs only the relationship
among the Administrative Agent, each Defaulting Lender and the other Lenders;
nothing hereunder shall limit the obligation of the Borrower to repay all Loans
in accordance with the terms of this Agreement. 
The provisions of this section shall apply and be effective regardless
of whether a Default occurs and is continuing, and notwithstanding (i) any
other provision of this Agreement to the contrary, (ii) any instruction of the
Borrower as to its desired application of payments or (iii) the suspension of
such Defaulting Lender’s right to vote on matters which are subject to the
consent or approval of the Required Lenders or all Lenders.


 


57

















 


ARTICLE XII


 


SETOFF; RATABLE PAYMENTS


 


12.1.        Setoff.  In addition to, and without limitation of,
any rights of the Lenders under applicable law, if the Borrower becomes
insolvent, however evidenced, or any Default or Unmatured Default occurs, any
and all deposits (including all account balances, whether provisional or final
and whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender or any of its Affiliates to or for the credit
or account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part
hereof, shall then be due.


 


12.2.        Ratable
Payments.  If any Lender, whether by
setoff or otherwise, has payment made to it upon its Loans (other than payments
received pursuant to Sections 4.1, 4.2 or 4.4) in a
greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans held by the other
Lenders so that after such purchase each Lender will hold its ratable
proportion of Loans.  If any Lender,
whether in connection with setoff or amounts which might be subject to setoff
or otherwise, receives collateral or other protection for its Obligations or
such amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans.  In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.


 


ARTICLE XIII


 


BENEFIT OF AGREEMENT;
ASSIGNMENTS; PARTICIPATIONS


 


 


13.1.        Binding
Effect.  The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit of the
Borrower and the Lenders and their respective successors and assigns permitted
hereby, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents without the prior written
consent of each Lender, (ii) any assignment by any Lender must be made in
compliance with Section 13.3, and (iii) any transfer by Participation must be
made in compliance with Section 13.2. 
Any attempted assignment or transfer by any party not made in compliance
with this Section 13.1 shall be null and void, unless such attempted assignment
or transfer is treated as a participation in accordance with Section
13.3.2.  The parties to this Agreement
acknowledge that clause (ii) of this Section 13.1 relates only to absolute
assignments and this Section 13.1 does not prohibit assignments creating
security interests, including, without limitation, (x) any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund,
any pledge or assignment of all or any portion of its rights under this
Agreement and any Note to its trustee in support of its obligations to its
trustee; provided, however, that no such pledge or assignment creating a
security interest shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with the
provisions of Section 13.3.  The


 


58

















 


Administrative
Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies
with Section 13.3; provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Loan or which holds any Note to direct payments relating to such
Loan or Note to another Person.  Any
assignee of the rights to any Loan or any Note agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan
Documents.  Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.


 


13.2.        Participations.


 


13.2.1      Permitted
Participants; Effect.  Any Lender may
at any time, sell participating interests in any Outstanding Credit Exposure of
such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents.  Any Person to whom such a participating
interest is sold is a “Participant”.  In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under the Loan Documents.


 


13.2.2      Voting
Rights.  Each Lender shall retain the
sole right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than any
amendment, modification or waiver with respect to any Loan or Commitment in
which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any such Loan
or Commitment or postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or Commitment or
releases any guarantor of any such Loan or releases any substantial portion of
collateral, if any, securing such Loan, or changes the definition of Required
Lenders.


 


13.2.3      Benefit
of Setoff.  The General Partner and
the Borrower each agrees that each Participant shall be deemed to have the
right of setoff provided in Section 12.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under the Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 12.1 with respect to the amount of
participating interests sold to each Participant.  The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided
in Section 13.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such


 


59

















 


amounts to be shared in accordance with Section 12.2 as if each
Participant were a Lender.


 


13.3.        Assignments.


 


13.3.1      Permitted
Assignments.  Any Lender may at any
time assign to one or more banks or other entities (“Purchasers”) all or
any part of its rights and obligations under the Loan Documents.  Such assignment shall be substantially in the
form of Exhibit F or in such other form as may be agreed to by the
parties thereto.  Each such assignment
with respect to a Purchaser which is not a Lender or an Affiliate of a Lender
or an Approved Fund shall either be in an amount equal to the entire applicable
Commitment and Loans of the assigning Lender or (unless each of the Borrower
and the Agent otherwise consents) be in an aggregate amount not less than
$5,000,000.  The amount of the assignment
shall be based on the Commitment or outstanding Loans (if the Commitment has
been terminated) subject to the assignment, determined as of the date of such
assignment or as of the “Trade Date,” if the “Trade Date” is specified in the
assignment.


 


13.3.2      Consents.  The consent of the Borrower shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund, provided that the consent of the
Borrower shall not be required if a Default has occurred and is
continuing.  The consent of the Agent
shall be required prior to an assignment becoming effective unless the
Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund (in the
case of an assignment of any other Commitment or Loans).  Any consent required under this Section
13.3.2 shall not be unreasonably withheld or delayed.


 


13.3.3      Effect;
Effective Date.  Upon (i) delivery to
the Administrative Agent of a notice of assignment, substantially in the form
attached as Exhibit I to Exhibit F hereto (a “Notice of
Assignment”), together with any consents required by Section 13.3.2,
and (ii) payment of a $3,500 fee to the Administrative Agent for processing
such assignment (unless the assignment is to an affiliate of the Lender in which
case no fee shall be charged), such assignment shall become effective on the
effective date specified in such Notice of Assignment.  The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration used
to make the purchase of the Commitment and Outstanding Credit Exposure under
the applicable assignment agreement are “plan assets” as defined under ERISA
and that the rights and interests of the Purchaser in and under the Loan
Documents will not be “plan assets” under ERISA.  On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and shall have
all the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party thereto, and the transferor Lender
shall be released with respect to the Commitment and Outstanding Credit
Exposure assigned to such Purchaser without any further consent or action by
the Borrower, the other Lenders or the Administrative Agent.  In the case of an assignment covering all of
the assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a Lender hereunder but shall continue to be entitled to the


 


60

















 


benefits of, and
subject to, those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the applicable
agreement.  Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply
with this Section 13.3 shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with Section 13.2. 
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Administrative Agent and the Borrower
shall make appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment.


 


13.3.4      Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at one of its offices
in Chicago, Illinois a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice.


 


13.4.        Intentionally
Omitted.


 


13.5.        Dissemination
of Information.  The General Partner
and the Borrower authorize each Lender to disclose any and all information in
such Lender’s possession concerning the creditworthiness of the General
Partner, the Borrower and their Subsidiaries to any Participant or Purchaser or
any other Person acquiring an interest in the Loan Documents by operation of
law (each a “Transferee”) and any prospective Transferee and any swap
counterparty as prospective swap counterparty with whom a Lender has entered or
is considering entering into a transaction to hedge such Lender’s credit risk
in connection with this Facility.


 


13.6.        Tax
Treatment.  If any interest in any
Loan Document is transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the effectiveness
of such transfer, to comply with the provisions of Section 2.22.


 


61

















 


ARTICLE XIV


 


NOTICES


 


14.1.        Notices;
Effectiveness; Electronic Communication.


 


(a)           Notices
Generally.  Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows:


 


(i)            if to the
Borrower, General Partner, or the Administrative Agent at its address or
telecopier number set forth in Schedule 5;


 


(ii)           if to a
Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.


 


Notices sent by hand or
overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the recipient).  Notices delivered through electronic
communications to the extent provided in paragraph (b) below, shall be
effective as provided in said paragraph (b).


 


(b)           Electronic
Communications.  Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and internet or intranet websites)
pursuant to procedures approved by the Administrative Agent or as otherwise
determined by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. 
The Administrative Agent or the Borrower may, in its respective
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it or as it
otherwise determines, provided that such determination or approval may be
limited to particular notices or communications.


 


Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.


 


In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and


 


62

















 


nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the Borrower, any
Lender or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).


 


14.2.        Change
of Address, Etc.  Any party hereto
may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto.


 


 


ARTICLE XV


 


COUNTERPARTS


 


15.1.        Counterparts;
Effectiveness.  This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  Except as provided in Article V, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


 


15.2.        Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any assignment and
assumption agreement shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, or other state laws based on the Uniform
Electronic Transactions Act.


 


[INTENTIONAL
END OF PAGE]


 


63

















 


IN WITNESS WHEREOF, the Borrower, the Guarantor, the
Lenders and the Administrative Agent have executed this Agreement as of the
date first above written.


 


 


	
   

  	
  DUKE REALTY LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, its

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Howard L. Feinsand

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Howard L. Feinsand

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President, General

  
	
   

  	
   

  	
   

  	
  Counsel and Secretary

  
	
   

  	
   

   

  
	
   

  	
   

   

  
	
   

  	
  DUKE REALTY CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Howard L. Feinsand

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Howard L. Feinsand

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President, General Counsel

  
	
   

  	
   

  	
  and Secretary

  
										



 


S-1

















 


Commitments:


 


	
  $350,000,000

  	
  BANK OF AMERICA,
  N.A., Individually and as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Mokelke

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Mark Mokelke

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-2

















 


Commitments:


 


	
  $233,000,000

  	
  WACHOVIA BANK,
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cathy A. Casey

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Cathy A. Casey

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-3

















 


Commitments:


 


	
  $117,000,000

  	
  DEUTSCHE BANK
  TRUST COMPANY

  AMERICAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brenda Casey

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Brenda Casey

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda Wang

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Linda Wang

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-4

















 


EXHIBIT A


 


INTENTIONALLY DELETED


 


1

















 


EXHIBIT
B


 


NOTE


 


                 
       , 2006


 


Duke Realty Limited Partnership, an Indiana limited
partnership (the “Borrower”) promises to pay to the order of                                   
(the “Lender”) the aggregate unpaid principal amount of all Loans made
by the Lender to the Borrower pursuant to Article II of the Term Loan Agreement
hereinafter referred to, in immediately available funds at the main office of
Bank of America, N.A. in Chicago, Illinois, as Administrative Agent, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement.  The
Borrower shall pay the remaining unpaid principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.


 


The Lender shall, and is hereby authorized to, record
on the schedule attached hereto, or to otherwise record in accordance with its
usual practice, the date and amount of each Loan and the date and amount of
each principal payment hereunder.


 


This Note is one of the Notes issued pursuant to, and
is entitled to the benefits of, the Term Loan Agreement (as the same may be
amended or modified, the “Agreement”), dated as of                 
       , 2006, among the Borrower, Duke
Realty Corporation, as Guarantor and General Partner, Bank of America, N.A.,
individually and as the Administrative Agent, and the other lenders named
therein, to which Agreement reference is hereby made for a statement of the
terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.  Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.


 


If there is an Unmatured Default or Default under the
Agreement or any other Loan Document and Administrative Agent exercises the
remedies provided under the Agreement and/or any of the Loan Documents for the
Lenders, then in addition to all amounts recoverable by the Administrative
Agent and the Lenders under such documents, the Administrative Agent and the
Lenders shall be entitled to receive reasonable attorneys fees and expenses
incurred by Administrative Agent and the Lenders in connection with the
exercise of such remedies.


 


Borrower and all endorsers severally waive
presentment, protest and demand, notice of protest, demand and of dishonor and
nonpayment of this Note, and any and all lack of diligence or delays in
collection or enforcement of this Note, and expressly agree that this Note, or
any payment hereunder, may be extended from time to time, and expressly consent
to the release of any party liable for the obligation secured by this Note, the
release of any of the security for this Note, the acceptance of any other
security therefor, or any other indulgence or forbearance whatsoever, all
without notice to any party and without affecting the liability of the Borrower
and any endorsers hereof.


 


This Note shall be governed and construed under the
internal laws of the State of Illinois.


 

















 


BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF,
EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN
DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS
THE SUBJECT OF THIS PROMISSORY NOTE AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.


 


 


	
   

  	
  DUKE REALTY LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, General

  
	
   

  	
   

  	
  Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 



















 


SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL


TO


NOTE OF DUKE REALTY LIMITED PARTNERSHIP


DATED
            , 2006


 


	
  Date

  	
   

  	
  Principal

  Amount

  of Loan

  	
   

  	
  Maturity

  of Interest

  Period

  	
   

  	
  Maturity

  Principal

  Amount Paid

  	
   

  	
  Unpaid

  Balance

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT C



FORM OF OPINION


 


                           ,
2006


 


The Administrative Agent
and


  the Lenders who are parties to the


  Term Loan Agreement described below


 


Gentlemen/Ladies:


 


We are counsel for
Duke Realty Limited Partnership, an Indiana limited partnership (the “Borrower”),
and Duke Corporation, an Indiana corporation (the “General Partner” and,
collectively with the Borrower, the “Duke Entities”), and have
represented the Duke Entities in connection with their execution and delivery
of a Term Loan Agreement among the Duke Entities, Bank of America N.A.,
individually, and as Administrative Agent, and the Lenders named therein,
providing for an Advance in an aggregate principal amount of $700,000,000 at
any one time outstanding and dated as of                            ,
2006 (the “Agreement”).  All
capitalized terms used in this opinion and not otherwise defined shall have the
meanings attributed to them in the Agreement.


 


We have examined
the Duke Entities’ articles of incorporation, by-laws, resolutions, certificate
of limited partnership, partnership agreement, the Loan Documents and such
other matters of fact and law which we deem necessary in order to render this
opinion.  Based upon the foregoing, it is
our opinion that:


 


1.             The General Partner, the Borrower and
each of their Subsidiaries are either duly incorporated corporations or duly
qualified and formed limited partnerships, validly existing and in good
standing under the laws of their states of incorporation or formation.


 


2.             The execution and delivery of the Loan
Documents by the Duke Entities and the performance by the Duke Entities of
their obligations under the Loan Documents have been duly authorized by all
necessary and partnership action and/or proceedings on the part of the Duke
Entities and will not:


 


(a)           require
any consent (which has not been obtained and delivered to Administrative Agent)
of the Duke Entities’ shareholders or limited partners;


 


(b)           violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Duke Entities or any of their Subsidiaries or the Duke Entities’
or any Subsidiary’s articles of incorporation, by-laws, certificate of limited
partnership, partnership agreement, or any indenture, instrument or agreement
binding upon the Duke Entities or any of their Subsidiaries; or


 


(c)           result
in, or require, the creation or imposition of any Lien pursuant to the
provisions of any indenture, instrument or agreement binding upon the Duke
Entities or any of their Subsidiaries.


 


1

















 


3.             The Loan Documents have been duly
executed and delivered by the Duke Entities and constitute legal, valid and
binding obligations of the Duke Entities enforceable in accordance with their
terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally and subject also to the availability of equitable remedies if
equitable remedies are sought.


 


4.             There is no litigation or proceeding
against the Duke Entities or any of their Subsidiaries which, if adversely
determined, could have a Material Adverse Effect, except as disclosed in Schedule       .


 


5.             No approval, authorization, consent,
adjudication or order of any governmental authority, which has not been
obtained by the Duke Entities or any of their Subsidiaries, is required to be
obtained by the Duke Entities or any of their Subsidiaries in connection with
the execution and delivery of the Loan Documents, the borrowings under the
Agreement or in connection with the payment by the Duke Entities of their
obligations under the Loan Documents.


 


6.             The General Partner qualifies as a real
estate investment trust in accordance with all applicable requirements of the
Internal Revenue Code.


 


This opinion may
be relied upon by the Agent, the Lenders and their participants, assignees and
other transferees.


 


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  



 


2

















 


EXHIBIT D


 


INTENTIONALLY DELETED


 


 


1

















 


EXHIBIT E



COMPLIANCE CERTIFICATE


 


To:       The
Administrative Agent and the Lenders


who
are parties to the Term Loan Agreement described below


 


This Compliance
Certificate is furnished pursuant to that certain Term Loan Agreement, dated as
of                       ,
         2006 (as amended, modified,
renewed or extended from time to time, the “Agreement”) among Duke
Realty Limited Partnership, an Indiana limited partnership (the “Borrower”),
Duke Realty Corporation, an Indiana corporation (“General Partner”),
Bank of America, N.A., individually, and as Administrative Agent, and the
Lenders named therein.  Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.


 


THE
UNDERSIGNED HEREBY CERTIFIES THAT:


 


1.             I am the duly elected
                      of the General Partner of the Borrower;


 


2.             I have reviewed the terms of the
Agreement and I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial
statements;


 


3.             The examinations described in paragraph 2
did not disclose, and I have no knowledge of, the existence of any condition or
event which constitutes a Default or Unmatured Default during or at the end of
the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and


 


4.             Schedule I attached hereto sets
forth financial data and computations evidencing the Borrower’s compliance with
certain covenants of the Agreement, all of which data and computations are
true, complete and correct.


 


Described below
are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of
the condition or event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event:


 


 


1

















 


The foregoing
certifications, together with the computations set forth in Schedule I
hereto and the financial statements delivered with this Certificate in support
hereof, are made and delivered this       
day of
              ,
200   .


 


 


	
   

  	
  DUKE REALTY
  LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY
  CORPORATION, its General

  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


2

















 


[SAMPLE]


 


SCHEDULE I TO COMPLIANCE
CERTIFICATE


 


Schedule of Compliance as of
                
with


Provisions       ,
      ,        and
       of the Agreement


 


3

















 


EXHIBIT F


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee]
(the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Term Loan Agreement identified below (as amended, the “Term Loan Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee.  The Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.


 


For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Terms and Conditions and the
Term Loan Agreement, as of the Effective Date inserted by the Administrative
Agent as contemplated below, the interest in and to all of the Assignor’s
rights and obligations in its capacity as a Lender under the Term Loan
Agreement and any other documents or instruments delivered pursuant thereto
that represents the amount and percentage interest identified below of all of
the Assignor’s outstanding rights and obligations under the respective
facilities identified below (including without limitation any letters of
credit, guaranties and swingline loans included in such facilities and, to the
extent permitted to be assigned under applicable law, all claims (including
without limitation contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity), suits, causes of action and
any other right of the Assignor against any Person whether known or unknown
arising under or in connection with the Term Loan Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby) (the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


1.             Assignor:


 


2.             Assignee:                                                                                       [and
is an Affiliate/Approved Fund of [identify Lender](1)


 


3.             Borrower(s):


 


4.             Administrative Agent:
                                                                 ,
as the administrative agent under the Term Loan Agreement.


 


5.             Term Loan Agreement:              The
[amount] Term Loan Agreement dated as of                             among


 


1

















 


[name of Borrower(s)], the Lenders party thereto,
[name of Administrative Agent], as Administrative Agent, and the other agents
party thereto.


 






(1) Select
as applicable.


 


6.             Assigned
Interest:


 


	
    Facility Assigned

  	
   

  	
    Aggregate Amount of

    Commitment/Loans for all

    Lenders*

  	
   

  	
    Amount of

    Commitment/Loans

    Assigned*

  	
   

  	
    Percentage Assigned of

    Commitment/Loans(2)

  	
   

  
	
                           (3)

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  % 

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  % 

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  % 

  	
   

  



 


7.             Trade
Date:                                            (4)


 


Effective Date:                                         ,
20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE ADMINISTRATIVE
AGENT.]


 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2

















 


[Consented to and](5) Accepted:


 


[NAME OF ADMINISTRATIVE
AGENT],


as Administrative Agent


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
				



 


[Consented to:](6)


 






*Amount to be adjusted by
the counterparties to take into account any payments or prepayments made
between the Trade Date and the Effective Date.


 


(2) Set forth, to at
least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 


(3) Fill in the
appropriate terminology for the types of facilities under the Term Loan
Agreement that are being assigned under this Assignment (e.g. “Revolving Credit
Commitment,” “Term Loan Commitment,”, etc.)


 


(4) Insert if
satisfaction of minimum amounts is to be determined as of the Trade Date.


 


(5) To be added only
if the consent of the Administrative Agent is required by the terms of the Term
Loan Agreement.


 


(6) To be added only
if the consent of the Borrower and/or other parties is required by the terms of
the Term Loan Agreement.


 


[NAME OF RELEVANT PARTY]


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
				



 


3

















 


ANNEX 1

TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


 


1.             Representations
and Warranties.


 


1.1           Assignor.  The Assignor represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby.  Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the Term
Loan Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency, perfection, priority,
collectibility, or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document, (iv) the
performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document, (v) inspecting any of the property, books or records of the
Borrower, or any guarantor, or (vi) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.


 


1.2.          Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Term Loan Agreement, (ii) from and after the Effective Date, it shall
be bound by the provisions of the Term Loan Agreement as a Lender thereunder
and, to the extent of the Assigned Interest, shall have the obligations of a
Lender thereunder, (iii) agrees that its payment instructions and notice
instructions are as set forth in Schedule 1 to this Assignment and
Assumption, (iv) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are “plan
assets” as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be “plan assets” under ERISA, (v) agrees
to indemnify and hold the Assignor harmless against all losses, costs and
expenses (including, without limitation, reasonable attorneys’ fees) and
liabilities incurred by the Assignor in connection with or arising in any
manner from the Assignee’s non-performance of the obligations assumed under
this Assignment and Assumption, (vi) it has received a copy of  the Term Loan Agreement, together with copies
of financial statements and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (vii) attached
as Schedule 1 to this Assignment and Assumption is any documentation
required to be delivered by the Assignee with respect to its tax status
pursuant to the terms of the Term Loan Agreement, duly completed and executed
by the Assignee and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own


 


4

















 


credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender.


 


2.             Payments.  The Assignee shall pay the Assignor, on the
Effective Date, the amount agreed to by the Assignor and the Assignee.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.


 


3.             General
Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.  This Assignment and Assumption
may be executed in any number of counterparts, which together shall constitute
one instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of Illinois.


 


5

















 


EXHIBIT G


 


FORM OF SUBSIDIARY GUARANTY


 


This
Guaranty is made as of                                 ,
           by                                   ,
a                                 
(“Guarantor”), to and for the benefit of Bank of America, N.A.,
individually (“Bank of America”) and as administrative agent (“Administrative
Agent”) for itself and the lenders under the Term Loan Agreement (as
defined below) and their respective successors and assigns (collectively, the “Lenders”).


 


RECITALS


 


A.            Duke
Realty Limited Partnership, an Indiana limited partnership (“Borrower”),
Duke Realty Corporation, an Indiana corporation (the “General Partner”),
Banc of America Securities LLC as Sole Lead Arranger and Book Runner, Bank of
America, N.A., individually, and as Administrative Agent, and the Lenders have
entered into a Term Loan Agreement dated as of                                         ,
2006 (as amended, modified or restated from time to time, the “Term Loan
Agreement”) pursuant to which the Lenders have agreed to provide Borrower
with a revolving credit facility in an aggregate principal amount of up to
$700,000,000 (the “Facility”). 
All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Term Loan Agreement.


 


B.            Borrower
has executed and delivered or will execute and deliver to the Lenders
promissory notes in the principal amount of each Lender’s Commitment as
evidence of Borrower’s indebtedness to each such Lender with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Term Loan Agreement, are collectively
referred to herein as the “Notes”).


 


C.            Guarantor
is a Subsidiary of Borrower or General Partner. 
Guarantor acknowledges that the extension of credit by the
Administrative Agent and the Lenders to Borrower pursuant to the Term Loan
Agreement will benefit Guarantor by making funds available to Guarantor through
Borrower and by enhancing the financial strength of the consolidated group of
which Guarantor and Borrower are members.


 


AGREEMENTS


 


NOW,
THEREFORE, Guarantor, in consideration of the matters described in the
foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as
follows:


 


1.  Guarantor absolutely, unconditionally, and
irrevocably guarantees to each of the Lenders:


 


1

















 


(a)           the full
and prompt payment of the principal of and interest on the Notes when due,
whether at stated maturity, upon acceleration or otherwise, and at all times
thereafter, and the prompt payment of all sums which may now be or may
hereafter become due and owing under the Notes, the Term Loan Agreement, and
the other Loan Documents;


 


(b)           the
payment of all Enforcement Costs (as hereinafter defined in Paragraph 7
hereof); and


 


(c)           the full,
complete, and punctual observance, performance, and satisfaction of all of the
obligations, duties, covenants, and agreements of Borrower under the Term Loan
Agreement and the Loan Documents.


 


All amounts due, debts,
liabilities, and payment obligations described in subparagraphs (a) and (b) of
this Paragraph 1 are referred to herein as the “Facility
Indebtedness.”  All obligations
described in subparagraph (c) of this Paragraph 1 are
referred to herein as the “Obligations.” 
The provisions of this Guaranty are severable, and in any action or
proceeding involving any state corporate law, or any state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of Guarantor under this Guaranty would otherwise
be held or determined to be avoidable, invalid or unenforceable on account of
the amount of such Guarantor’s liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
amount of such liability shall, without any further action by Guarantor, the
Administrative Agent or any Lender, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding (such highest amount determined hereunder being the Guarantor’s “Maximum
Liability”). This provision with respect to the Maximum Liability of the
Guarantor is intended solely to preserve the rights of the Administrative Agent
hereunder to the maximum extent not subject to avoidance under applicable law,
and neither the Guarantor nor any other person or entity shall have any right
or claim under this provision with respect to the Maximum Liability, except to
the extent necessary so that the obligations of Guarantor hereunder shall not
be rendered voidable under applicable law. 
In the event Guarantor shall make any payment or payments under this
Guaranty each other guarantor of the Facility Indebtedness shall contribute to
Guarantor an amount equal to such non-paying guarantor’s pro rata share (based
on their respective maximum liabilities hereunder and under such other
guaranty) of such payment or payments made by Guarantor, provided that such
contribution right shall be subordinate and junior in right of payment in full
of all the Facility Indebtedness to Lenders.


 


2.  In the event of any default by Borrower in
making payment of the Facility Indebtedness, or in performance of the
Obligations, as aforesaid, in each case beyond the expiration of any applicable
grace period, Guarantor agrees, on demand by the Administrative Agent to pay
all the Facility Indebtedness and to perform all the Obligations as are then or
thereafter become due and owing or are to be performed under the terms of the
Notes, the Term Loan Agreement, and the other Loan Documents.


 


3.  Guarantor does hereby waive (i) notice
of acceptance of this Guaranty by the Administrative Agent and the Lenders and
any and all notices and demands of every kind which may be required to be given
by any statute, rule or law, (ii) any defense, right of set-off or
other claim which Guarantor


 


2

















 


may have against Borrower
or which Guarantor or Borrower may have against the Administrative Agent or the
Lenders or the holder of a Note, (iii) presentment for payment, demand for
payment (other than as provided for in Paragraph 2 above), notice
of nonpayment (other than as provided for in Paragraph 2 above) or
dishonor, protest and notice of protest, diligence in collection and any and
all formalities which otherwise might be legally required to charge Guarantor
with liability, (iv) any failure by the Administrative Agent and the
Lenders to inform Guarantor of any facts the Administrative Agent and the
Lenders may now or hereafter know about Borrower, the Facility, or the
transactions contemplated by the Term Loan Agreement, it being understood and
agreed that the Administrative Agent and the Lenders have no duty so to inform
and that Guarantor is fully responsible for being and remaining informed by
Borrower of all circumstances bearing on the existence or creation, or the risk
of nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of
Borrower or any other action by any court or governmental body with respect
thereto, or to cause the Administrative Agent and the Lenders to proceed
against any other security given to a Lender in connection with the Facility
Indebtedness or the Obligations.  Credit
may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Guarantor, regardless of the financial
or other condition of Borrower at the time of any such grant or
continuation.  The Administrative Agent
and the Lenders shall have no obligation to disclose or discuss with Guarantor
their assessment of the financial condition of Borrower.  Guarantor acknowledges that no
representations of any kind whatsoever have been made by the Administrative
Agent and the Lenders to Guarantor.  No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon the Administrative Agent and the Lenders except as expressly set
forth in a writing duly signed and delivered on behalf of the Administrative
Agent and the Lenders.  Guarantor further
agrees that any exculpatory language contained in the Term Loan Agreement, the
Notes, and the other Loan Documents shall in no event apply to this Guaranty,
and will not prevent the Administrative Agent and the Lenders from proceeding
against Guarantor to enforce this Guaranty.


 


4.  Guarantor further agrees that Guarantor’s
liability as guarantor shall in no way be impaired by any renewals or
extensions which may be made from time to time, with or without the knowledge
or consent of Guarantor of the time for payment of interest or principal under
a Note or by any forbearance or delay in collecting interest or principal under
a Note, or by any waiver by the Administrative Agent and the Lenders under the
Term Loan Agreement, or any other Loan Documents, or by the Administrative
Agent or the Lenders’ failure or election not to pursue any other remedies they
may have against Borrower, or by any change or modification in a Note, the Term
Loan Agreement, or any other Loan Documents, or by the acceptance by the
Administrative Agent or the Lenders of any security or any increase,
substitution or change therein, or by the release by the Administrative Agent
and the Lenders of any security or any withdrawal thereof or decrease therein,
or by the application of payments received from any source to the payment of
any obligation other than the Facility Indebtedness, even though a Lender might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Guarantor shall remain liable as
principal for payment of the Facility Indebtedness and performance of the
Obligations until all indebtedness has been paid in full and the other terms,
covenants and conditions of the Term Loan Agreement, and other Loan Documents
and this Guaranty have been performed, notwithstanding any act or thing which
might otherwise operate as a legal or equitable discharge of a surety.  Guarantor further understands and agrees that
the Administrative Agent and


 


3

















 


the Lenders may at any
time enter into agreements with Borrower to amend and modify a Note, the Term
Loan Agreement or any of the other Loan Documents, or any thereof, and may
waive or release any provision or provisions of a Note, the Term Loan
Agreement, or any other Loan Document and, with reference to such instruments,
may make and enter into any such agreement or agreements as the Administrative
Agent, the Lenders and Borrower may deem proper and desirable, without in any
manner impairing this Guaranty or any of the Administrative Agent and the
Lenders’ rights hereunder or any of Guarantor’s obligations hereunder.


 


5.  This is an absolute, unconditional, complete,
present and continuing guaranty of payment and performance and not of
collection.  Guarantor agrees that its
obligations hereunder shall be joint and several with any and all other guarantees
given in connection with the Facility from time to time.  Guarantor agrees that this Guaranty may be
enforced by the Administrative Agent and the Lenders without the necessity at
any time of resorting to or exhausting any security or collateral, if any,
given in connection herewith or with a Note, the Term Loan Agreement, or any of
the other Loan Documents or by resorting to any other guaranties, and Guarantor
hereby waives the right to require the Administrative Agent and the Lenders to
join Borrower in any action brought hereunder or to commence any action against
or obtain any judgment against Borrower or to pursue any other remedy or
enforce any other right.  Guarantor
further agrees that nothing contained herein or otherwise shall prevent the Administrative
Agent and the Lenders from pursuing concurrently or successively all rights and
remedies available to them at law and/or in equity or under a Note, the Term
Loan Agreement or any other Loan Documents, and the exercise of any of their
rights or the completion of any of their remedies shall not constitute a
discharge of any of Guarantor’s obligations hereunder, it being the purpose and
intent of Guarantor that the obligations of such Guarantor hereunder shall be
primary, absolute, independent and unconditional under any and all circumstances
whatsoever.  Neither Guarantor’s
obligations under this Guaranty nor any remedy for the enforcement thereof
shall be impaired, modified, changed or released in any manner whatsoever by
any impairment, modification, change, release or limitation of the liability of
Borrower under a Note, the Term Loan Agreement or any other Loan Document or by
reason of Borrower’s bankruptcy or by reason of any creditor or bankruptcy
proceeding instituted by or against Borrower. 
This Guaranty shall continue to be effective and be deemed to have
continued in existence or be reinstated (as the case may be) if at any time
payment of all or any part of any sum payable pursuant to a Note, the Term Loan
Agreement or any other Loan Document is rescinded or otherwise required to be
returned by the payee upon the insolvency, bankruptcy, or reorganization
of the payor, all as though such payment to such Lender had not been made,
regardless of whether such Lender contested the order requiring the return of
such payment.  The obligations of
Guarantor pursuant to the preceding sentence shall survive any termination,
cancellation, or release of this Guaranty.


 


6.  This Guaranty shall be assignable by a Lender
to any assignee of all or a portion of such Lender’s rights under the Loan Documents.


 


7.  If:  (i) this
Guaranty, a Note, or any of the Loan Documents are placed in the hands of an
attorney for collection or is collected through any legal proceeding; (ii) an
attorney is retained to represent the Administrative Agent or any Lender in any
bankruptcy, reorganization, receivership, or other proceedings affecting
creditors’ rights and involving a claim under this Guaranty, a Note, the Term
Loan Agreement, or any Loan Document; (iii) an attorney is retained to
enforce any of the


 


4

















 


other Loan Documents or
to provide advice or other representation with respect to the Loan Documents in
connection with an enforcement action or potential enforcement action; or (iv) an
attorney is retained to represent the Administrative Agent or any Lender in any
other legal proceedings whatsoever in connection with this Guaranty, a Note,
the Term Loan Agreement, any of the Loan Documents, or any property subject
thereto (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent alleging a breach by the
Administrative Agent of its duties under the Loan Documents), then Guarantor
shall pay to the Administrative Agent or such Lender upon demand all reasonable
attorney’s fees, costs and expenses, including, without limitation, court
costs, filing fees and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as “Enforcement Costs”),
in addition to all other amounts due hereunder.


 


8.  The parties hereto intend that each provision
in this Guaranty comports with all applicable local, state and federal laws and
judicial decisions.  However, if any
provision or provisions, or if any portion of any provision or provisions, in
this Guaranty is found by a court of law to be in violation of any applicable
local, state or federal ordinance, statute, law, administrative or judicial
decision, or public policy, and if such court should declare such portion,
provision or provisions of this Guaranty to be illegal, invalid, unlawful, void
or unenforceable as written, then it is the intent of all parties hereto that
such portion, provision or provisions shall be given force to the fullest
possible extent that they are legal, valid and enforceable, that the remainder
of this Guaranty shall be construed as if such illegal, invalid, unlawful, void
or unenforceable portion, provision or provisions were not contained therein,
and that the rights, obligations and interest of the Administrative Agent and
the Lender or the holder of a Note under the remainder of this Guaranty shall
continue in full force and effect.


 


9.  Any indebtedness of Borrower to Guarantor now
or hereafter existing is hereby subordinated to the Facility Indebtedness.
 Guarantor will not seek, accept, or retain for Guarantor’s own account,
any payment from Borrower on account of such subordinated debt at any time when
a Default or Unmatured Default exists under the Term Loan Agreement or the Loan
Documents, and any such payments to Guarantor made while any Default or
Unmatured Default then exists under the Term Loan Agreement or the Loan
Documents on account of such subordinated debt shall be collected and received
by Guarantor in trust for the Lenders and shall be paid over to the Administrative
Agent on behalf of the Lenders on account of the Facility Indebtedness without
impairing or releasing the obligations of Guarantor hereunder.


 


10.  Guarantor hereby subordinates to the Facility
Indebtedness any and all claims and rights, including, without limitation,
subrogation rights, contribution rights, reimbursement rights and set-off
rights, which Guarantor may have against Borrower arising from a payment made
by Guarantor under this Guaranty and agrees that, until the entire Facility Indebtedness
is paid in full, not to assert or take advantage of any subrogation rights of
Guarantor or the Lenders or any right of Guarantor or the Lenders to proceed
against (i) Borrower for reimbursement, or (ii) any other guarantor
or any collateral security or guaranty or right of offset held by the Lenders
for the payment of the Facility Indebtedness and performance of the
Obligations, nor shall Guarantor seek or be entitled to seek any contribution
or reimbursement from Borrower or any other guarantor in respect of payments
made by Guarantor hereunder.  It is
expressly understood that the agreements of Guarantor set forth


 


5

















 


above constitute
additional and cumulative benefits given to the Lenders for their security and
as an inducement for their extension of credit to Borrower.


 


11.  Any amounts received by a Lender from any
source on account of any indebtedness may be applied by such Lender toward the
payment of such indebtedness, and in such order of application, as a Lender may
from time to time elect.


 


12.  Guarantor hereby submits to personal
jurisdiction in the State of Illinois for the enforcement of this Guaranty and
waives any and all personal rights to object to such jurisdiction for the
purposes of litigation to enforce this Guaranty.  Guarantor hereby consents to the jurisdiction
of either the Circuit Court of Cook County, Illinois, or the United States
District Court for the Northern District of Illinois, in any action, suit, or
proceeding which the Administrative Agent or a Lender may at any time wish to
file in connection with this Guaranty or any related matter.  Guarantor hereby agrees that an action, suit,
or proceeding to enforce this Guaranty may be brought in any state or federal
court in the State of Illinois and hereby waives any objection which Guarantor
may have to the laying of the venue of any such action, suit, or proceeding in
any such court; provided, however, that the provisions of this Paragraph shall
not be deemed to preclude the Administrative Agent or a Lender from filing any
such action, suit, or proceeding in any other appropriate forum.


 


13.  All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. 
Any notice, if mailed and properly addressed with postage prepaid, shall
be deemed given when received; any notice, if transmitted by facsimile, shall
be deemed given when transmitted.  Notice
may be given as follows:


 


	
  To Guarantor:

  	
   

  
	
   

  	
   

  
	
  Duke Realty Corporation

  
	
  600 East 96th Street, Suite 100

  
	
  Indianapolis, Indiana 46240

  
	
  Attention:

  	
  Matthew A.
  Cohoat

  
	
   

  	
   

  
	
  Telephone:

  	
  (317) 808-6065

  
	
  Facsimile:

  	
  (317) 808-6794

  
	
   

  	
   

  
	
  With a copy to:

  	
   

  
	
  Duke Realty Corporation

  
	
  3750 Shackeleford Road

  
	
  Duluth, GA 30096

  
	
  Attention:

  	
  Howard L.
  Feinsand

  
	
   

  	
   

  
	
  Telephone:

  	
  770-717-3267

  
	
  Facsimile:

  	
  770-717-3314

  



 


6

















 


	
  To Bank of
  America, N.A. as Administrative Agent and as a Lender:

  
	
   

  	
   

  
	
  Mollie S. Canup

  
	
  Vice President, Agency Management Officer III

  
	
  Bank of America, N.A.

  
	
  101 N. Tryon St.

  
	
  NC1-001-15-14

  
	
  Charlotte, N.C. 28255

  
	
   

  	
   

  
	
  Telephone:

  	
  (704) 387-5449

  
	
  Facsimile:

  	
  (704) 409-0011

  
	
  Email:

  	
  mollie.s.canup@bankofamerica.com

  
	
   

  	
   

  
	
  With a copy to:

  	
   

  
	
   

  	
   

  
	
  Sonnenschein Nath & Rosenthal LLP

  
	
  8000 Sears Tower

  
	
  Chicago, Illinois 60606

  
	
  Attention:

  	
  Steven R.
  Davidson, Esq.

  
	
   

  	
   

  
	
  Telephone:

  	
  (312) 876-8238

  
	
  Facsimile:

  	
  (312) 876-7934

  



 


If to
any other Lender, to its address set forth in the Term Loan Agreement.


 


14.  This Guaranty shall be binding upon the
heirs, executors, legal and personal representatives, successors and assigns of
Guarantor and shall inure to the benefit of the Administrative Agent and the
Lenders’ successors and assigns.


 


15.  This Guaranty shall be construed and enforced
under the internal laws of the State of Illinois.


 


16.  GUARANTOR, THE ADMINISTRATIVE AGENT AND THE
LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


7

















 


IN WITNESS WHEREOF,
Guarantor has delivered this Guaranty in the State of Illinois as of the date
first written above.


 


 


	
   

  	
   

  	
   

  	
  , a 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  



 


8

















 


SCHEDULE 1


 


SUBSIDIARIES AND OTHER INVESTMENTS


(See Section 6.7)


 


	
  Investment

  In

  	
   

  	
  Owned

  By

  	
   

  	
  Amount of

  Investment

  	
   

  	
  Percent

  Ownership

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


SCHEDULE 2


 


INDEBTEDNESS AND LIENS


(See Section 7.15)


 


	
  Indebtedness

  Incurred By

  	
   

  	
  Indebtedness

  Owed To

  	
   

  	
  Property

  Encumbered

  	
   

  	
  Maturity

  and Amount

  of Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


SCHEDULE 3


 


UNENCUMBERED ASSETS


(See Section 6.20)


 


	
  Project Name

  and Address

  	
   

  	
  Type of Project

  	
   

  	
  Date Placed

  In Service 

  	
   

  	
  Owned By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


SCHEDULE 4


 


DESCRIPTION OF WINKLER PORTFOLIO


 


1

















 


SCHEDULE 5


 


DOMESTIC LENDING OFFICES,


ADDRESSES FOR NOTICES


 


DUKE
REALTY LIMITED PARTNERSHIP or DUKE REALTY CORPORATION


 


	
  c/o Duke Realty
  Corporation

  
	
  600 East 96th
  Street, Suite 100

  
	
  Indianapolis,
  Indiana 46240

  
	
  Attn: Matthew A.
  Cohoat

  
	
  Telephone:

  	
  (312) 808-6065

  
	
  Facsimile:

  	
  (312) 808-6794

  



 


BANK
OF AMERICA, N.A., AS ADMINISTRATIVE AGENT


 


For payments and requests for
conversions:  


	
  Bank of America,
  N.A.

  
	
  Karen DuMond

  
	
  TX1-492-14-05

  
	
  901 Main Street

  
	
  Dallas, TX 75202-3714

  
	
  Fax Phone:

  	
  214-290-9445

  
	
  Office Phone:

  	
  214-209-0539

  
	
  Work Email:
  karen.s.dumond@bankofamerica.com

  



 


PAYMENT
INSTRUCTIONS


	
  Bank of America,
  N.A.

  
	
  Dallas, Tx

  	
   

  
	
  ABA #

  	
  111000012 (ABA # changes to 026009593 effective 03/06/06)

  
	
  Account No.:

  	
  1292000883

  
	
  Attn.:

  	
  Corporate Credit
  Services

  
	
  Ref:

  	
  Duke Realty
  Limited Partnership

  



 


Other Notices as Administrative
Agent: 


	
  Mollie S. Canup

  
	
  Vice President,
  Agency Management Officer III

  
	
  Bank of America,
  N.A.

  
	
  101 N. Tryon St.

  
	
  NC1-001-15-14

  
	
  Charlotte, N.C.
  28255

  
	
  Telephone:

  	
  (704) 387-5449

  
	
  Facsimile:

  	
  (704) 409-0011

  
	
  Email:

  	
  mollie.s.canup@bankofamerica.com

  



 


1

















 


OTHER
NOTICES AS A LENDER


	
  Mark Mokelke

  	
   

  
	
  AVP; Associate

  	
   

  
	
  Chicago PM
  Office

  	
   

  
	
  Bank of America,
  N.A.

  	
   

  
	
  231 LaSalle St.

  	
   

  
	
  IL1-231-10-35

  	
   

  
	
  Chicago, Il.
  60604

  
	
  Telephone:

  	
  (312) 828-1739

  
	
  Facsimile:

  	
  (312) 974-4970

  
	
  Email:

  	
  mark.a.mokelke@bankofamerica.com

  
			



 


2