exv10w1






Exhibit 10.1



Execution Version




SIXTH AMENDED AND RESTATED




UNSECURED REVOLVING CREDIT AND



TERM LOAN AGREEMENT



DATED
AS OF OCTOBER 22, 2010



AMONG



FIRST INDUSTRIAL, L.P., AS BORROWER



FIRST INDUSTRIAL REALTY TRUST, INC.,



AS GENERAL PARTNER AND GUARANTOR



THE LENDERS



AND



JPMORGAN CHASE BANK, N.A.



AS ADMINISTRATIVE AGENT



AND



J. P. MORGAN SECURITIES LLC., and



WELLS FARGO SECURITIES, LLC



AS JOINT-LEAD ARRANGERS AND JOINT BOOK RUNNERS



AND



WELLS FARGO BANK, N.A.,



AS SYNDICATION AGENT



AND



REGIONS BANK and U.S. BANK, NATIONAL ASSOCIATION,



AS DOCUMENTATION AGENTS



AND



COMERICA BANK and PNC BANK, NATIONAL ASSOCIATION,



AS CO-AGENTS



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	1	 
	1.2. Financial Standards
	 	 	25	 
	1.3. Classification of Loans and Borrowings
	 	 	25	 
	1.4. Exchange Rates
	 	 	25	 
	1.5. Currency Conversion
	 	 	26	 
	 
	 	 	 	 
	ARTICLE II. THE FACILITY
	 	 	26	 
	 
	 	 	 	 
	2.1. The Revolving Facility
	 	 	26	 
	2.2. The Term Facility
	 	 	27	 
	2.3. Principal Payments
	 	 	29	 
	2.4. Requests for Revolving Borrowings; Responsibility for Revolving Borrowings
	 	 	29	 
	2.5. Evidence of Credit Extensions
	 	 	29	 
	2.6. Loans and Borrowings
	 	 	30	 
	2.7. Requests for Revolving Borrowings
	 	 	30	 
	2.8. Interest Elections
	 	 	32	 
	2.9. Applicable Margins
	 	 	33	 
	2.10. Other Fees
	 	 	34	 
	2.11. Minimum Amount of Each Borrowing
	 	 	35	 
	2.12. Interest
	 	 	35	 
	2.13. Method of Payment
	 	 	35	 
	2.14. Default
	 	 	36	 
	2.15. Lending Installations
	 	 	36	 
	2.16. Non-Receipt of Funds by Administrative Agent
	 	 	36	 
	2.17. Swingline Loans
	 	 	37	 
	2.18. Competitive Bid Loans
	 	 	38	 
	2.19. Voluntary Reduction of Aggregate Commitment Amount
	 	 	42	 
	2.20. Reserved
	 	 	42	 
	2.21. Application of Moneys Received
	 	 	42	 
	2.22. Special Provisions Regarding Foreign Currency Loans
	 	 	43	 






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(continued)




	 	 	 	 	 
	 	 	 	Page	 
	2.23. Voluntary Prepayments of Loans
	 	 	45	 
	2.24. Mandatory Prepayments of Term Loans and Pari Passu Debt
	 	 	46	 
	 
	 	 	 	 
	ARTICLE III. THE LETTER OF CREDIT SUBFACILITY
	 	 	47	 
	 
	 	 	 	 
	3.1. Obligation to Issue
	 	 	47	 
	3.2. Types and Amounts
	 	 	47	 
	3.3. Conditions
	 	 	48	 
	3.4. Procedure for Issuance of Facility Letters of Credit
	 	 	48	 
	3.5. Reimbursement Obligations; Duties of Issuing Bank
	 	 	50	 
	3.6. Participation
	 	 	52	 
	3.7. Payment of Reimbursement Obligations
	 	 	53	 
	3.8. Compensation for Facility Letters of Credit
	 	 	54	 
	3.9. Letter of Credit Collateral Account
	 	 	55	 
	3.10. Conversion
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV. CHANGE IN CIRCUMSTANCES
	 	 	56	 
	 
	 	 	 	 
	4.1. Yield Protection
	 	 	56	 
	4.2. Changes in Capital Adequacy Regulations
	 	 	56	 
	4.3. Availability of Eurocurrency Borrowings
	 	 	57	 
	4.4. Funding Indemnification
	 	 	57	 
	4.5. Taxes
	 	 	58	 
	4.6. Lender Statements; Survival of Indemnity
	 	 	60	 
	4.7. Replacement of Lenders under Certain Circumstances
	 	 	60	 
	4.8. Change in Law
	 	 	61	 
	 
	 	 	 	 
	ARTICLE V. CONDITIONS PRECEDENT
	 	 	61	 
	 
	 	 	 	 
	5.1. Conditions Precedent to Closing
	 	 	61	 
	5.2. Conditions Precedent to Subsequent Borrowings
	 	 	64	 
	 
	 	 	 	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES
	 	 	64	 
	 
	 	 	 	 
	6.1. Existence
	 	 	64	 
	6.2. Corporate/Partnership Powers
	 	 	64	 
	6.3. Power of Officers
	 	 	65	 
	6.4. Government and Other Approvals
	 	 	65	 






ii









 






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(continued)




	 	 	 	 	 
	 	 	 	Page	 
	6.5. Solvency
	 	 	65	 
	6.6. Compliance With Laws
	 	 	65	 
	6.7. Enforceability of Agreement
	 	 	65	 
	6.8. Title to Property
	 	 	66	 
	6.9. Litigation
	 	 	66	 
	6.10. Events of Default
	 	 	66	 
	6.11. Investment Company Act of 1940
	 	 	66	 
	6.12. Public Utility Holding Company Act
	 	 	66	 
	6.13. Regulation U
	 	 	66	 
	6.14. No Material Adverse Financial Change
	 	 	66	 
	6.15. Financial Information
	 	 	66	 
	6.16. Factual Information
	 	 	67	 
	6.17. ERISA
	 	 	67	 
	6.18. Taxes
	 	 	67	 
	6.19. Environmental Matters
	 	 	67	 
	6.20. Insurance
	 	 	68	 
	6.21. No Brokers
	 	 	68	 
	6.22. No Violation of Usury Laws
	 	 	68	 
	6.23. Not a Foreign Person
	 	 	69	 
	6.24. No Trade Name
	 	 	69	 
	6.25. Subsidiaries
	 	 	69	 
	6.26. Unencumbered Assets
	 	 	69	 
	 
	 	 	 	 
	ARTICLE VII. ADDITIONAL REPRESENTATIONS AND WARRANTIES
	 	 	71	 
	 
	 	 	 	 
	7.1. Existence
	 	 	71	 
	7.2. Corporate Powers
	 	 	71	 
	7.3. Power of Officers
	 	 	71	 
	7.4. Government and Other Approvals
	 	 	71	 
	7.5. Compliance With Laws
	 	 	71	 
	7.6. Enforceability of Agreement
	 	 	71	 
	7.7. Liens; Consents
	 	 	71	 






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(continued)




	 	 	 	 	 
	 	 	 	Page	 
	7.8. Litigation
	 	 	72	 
	7.9. Events of Default
	 	 	72	 
	7.10. Investment Company Act of 1940
	 	 	72	 
	7.11. Public Utility Holding Company Act
	 	 	72	 
	7.12. No Material Adverse Financial Change
	 	 	72	 
	7.13. Financial Information
	 	 	72	 
	7.14. Factual Information
	 	 	72	 
	7.15. ERISA
	 	 	73	 
	7.16. Taxes
	 	 	73	 
	7.17. No Brokers
	 	 	73	 
	7.18. Subsidiaries
	 	 	73	 
	7.19. Status
	 	 	73	 
	 
	 	 	 	 
	ARTICLE VIII. AFFIRMATIVE COVENANTS
	 	 	74	 
	 
	 	 	 	 
	8.1. Notices
	 	 	74	 
	8.2. Financial Statements, Reports, Etc
	 	 	74	 
	8.3. Existence and Conduct of Operations
	 	 	76	 
	8.4. Maintenance of Properties
	 	 	77	 
	8.5. Insurance
	 	 	77	 
	8.6. Payment of Obligations
	 	 	77	 
	8.7. Compliance with Laws
	 	 	77	 
	8.8. Adequate Books
	 	 	77	 
	8.9. ERISA
	 	 	78	 
	8.10. Maintenance of Status
	 	 	78	 
	8.11. Use of Proceeds
	 	 	78	 
	8.12. Pre-Acquisition Environmental Investigations
	 	 	78	 
	8.13. Distributions
	 	 	78	 
	 
	 	 	 	 
	ARTICLE IX. NEGATIVE COVENANTS
	 	 	78	 
	 
	 	 	 	 
	9.1. Change in Business
	 	 	78	 
	9.2. Change of Management of Properties
	 	 	79	 
	9.3. Change of Borrower Ownership
	 	 	79	 






iv









 






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(continued)




	 	 	 	 	 
	 	 	 	Page	 
	9.4. Use of Proceeds
	 	 	79	 
	9.5. Liens
	 	 	79	 
	9.6. Regulation U
	 	 	80	 
	9.7. Indebtedness and Cash Flow Covenants
	 	 	80	 
	9.8. Change of Control; Mergers and Dispositions
	 	 	82	 
	9.9. Negative Pledge
	 	 	82	 
	 
	 	 	 	 
	ARTICLE X. DEFAULTS
	 	 	82	 
	 
	 	 	 	 
	10.1. Nonpayment of Principal
	 	 	82	 
	10.2. Certain Covenants
	 	 	82	 
	10.3. Nonpayment of Interest and Other Obligations
	 	 	82	 
	10.4. Cross Default
	 	 	82	 
	10.5. Loan Documents
	 	 	83	 
	10.6. Representation or Warranty
	 	 	83	 
	10.7. Covenants, Agreements and Other Conditions
	 	 	83	 
	10.8. No Longer General Partner
	 	 	83	 
	10.9. Material Adverse Financial Change
	 	 	83	 
	10.10. Bankruptcy
	 	 	83	 
	10.11. Legal Proceedings
	 	 	84	 
	10.12. ERISA
	 	 	84	 
	10.13. Change in Control
	 	 	84	 
	10.14. Failure to Satisfy Judgments
	 	 	84	 
	10.15. Environmental Remediation
	 	 	84	 
	 
	 	 	 	 
	ARTICLE XI. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
	 	 	85	 
	 
	 	 	 	 
	11.1. Acceleration
	 	 	85	 
	11.2. Preservation of Rights; Amendments
	 	 	86	 
	 
	 	 	 	 
	ARTICLE XII. THE ADMINISTRATIVE AGENT
	 	 	86	 
	 
	 	 	 	 
	12.1. Appointment
	 	 	86	 
	12.2. Powers
	 	 	87	 
	12.3. General Immunity
	 	 	87	 






v









 






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(continued)




	 	 	 	 	 
	 	 	 	Page	 
	12.4. No
Responsibility for Loans, Recitals, etc.
	 	 	87	 
	12.5. Action on Instructions of Lenders
	 	 	87	 
	12.6. Employment of Administrative Agents and Counsel
	 	 	88	 
	12.7. Reliance on Documents; Counsel
	 	 	88	 
	12.8. Administrative Agent’s Reimbursement and Indemnification
	 	 	88	 
	12.9. Rights as a Lender
	 	 	88	 
	12.10. [Intentionally Omitted.]
	 	 	88	 
	12.11. Lender Credit Decision
	 	 	88	 
	12.12. Successor Administrative Agent
	 	 	89	 
	12.13. Notice of Defaults
	 	 	89	 
	12.14. Requests for Approval
	 	 	90	 
	12.15. Copies of Documents
	 	 	90	 
	12.16. Defaulting Lenders
	 	 	90	 
	12.17. Delegation to Affiliates
	 	 	92	 
	12.18.
Co-Agents, Managing Agents, Documentation Agent, Syndication Agent, etc.
	 	 	92	 
	 
	 	 	 	 
	ARTICLE XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
	 	 	92	 
	 
	 	 	 	 
	13.1. Successors and Assigns
	 	 	92	 
	13.2. Participations
	 	 	93	 
	13.3. Assignments; Consents
	 	 	94	 
	13.4. Dissemination of Information
	 	 	95	 
	13.5. Tax Treatment
	 	 	96	 
	 
	 	 	 	 
	ARTICLE XIV. GENERAL PROVISIONS
	 	 	96	 
	 
	 	 	 	 
	14.1. Survival of Representations
	 	 	96	 
	14.2. Governmental Regulation
	 	 	96	 
	14.3. Taxes
	 	 	96	 
	14.4. Headings
	 	 	96	 
	14.5. No Third Party Beneficiaries
	 	 	96	 
	14.6. Expenses; Indemnification
	 	 	96	 
	14.7. Severability of Provisions
	 	 	97	 






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	 	 	 	Page	 
	14.8. Nonliability of the Lenders
	 	 	97	 
	14.9. Choice of Law
	 	 	97	 
	14.10. Consent to Jurisdiction
	 	 	97	 
	14.11. Waiver of Jury Trial
	 	 	97	 
	14.12. Successors and Assigns
	 	 	98	 
	14.13. Entire Agreement; Modification of Agreement
	 	 	98	 
	14.14. Dealings with the Borrower
	 	 	99	 
	14.15. Set-Off
	 	 	99	 
	14.16. Counterparts
	 	 	99	 
	14.17. Patriot Act CIP Notice
	 	 	100	 
	14.18. Judgment Currency
	 	 	100	 
	 
	 	 	 	 
	ARTICLE XV. NOTICES
	 	 	100	 
	 
	 	 	 	 
	15.1. Giving Notice
	 	 	100	 
	15.2. Change of Address
	 	 	102	 






vii









 






EXHIBITS




	 	 	 	 	 
	 	 	 	 
	A

	 	-
	 	Commitment Amounts
	B-1

	 	-
	 	Form of Note
	B-2

	 	-
	 	Form of Competitive Bid Note
	C-1

	 	-
	 	Form of Competitive Bid Quote Request
	C-2

	 	-
	 	Invitation for Competitive Bid Quotes
	C-3

	 	-
	 	Competitive Bid Quote
	D

	 	-
	 	Form of Guaranty
	E

	 	-
	 	Opinion of Borrower’s Counsel
	F

	 	-
	 	Opinion of General Partner’s Counsel
	G

	 	-
	 	Wiring Instructions
	H

	 	-
	 	Form of Compliance Certificate
	I

	 	-
	 	Form of Assignment Agreement
	J

	 	-
	 	Form of Designation Agreement






SCHEDULES




	 	 	 

	1.1

	 	Mandatory Cost
	2.24

	 	Properties with Development Obligations
	3.1

	 	Outstanding Facility Letters of Credit
	6.9

	 	Litigation (Borrower)
	6.19

	 	Environmental Compliance
	6.24

	 	Trade Names
	6.25

	 	Subsidiaries (Borrower)
	6.26

	 	Unencumbered Assets
	7.8

	 	Litigation (General Partner)
	7.18

	 	Subsidiaries (General Partner)







i











 





SIXTH AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AND TERM LOAN AGREEMENT




     THIS SIXTH AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered
into as of October 22, 2010 by and among the following:



     FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its principal place of business
at 311 South Wacker Drive, Suite 4000, Chicago, Illinois 60606 (“Borrower”), the sole
general partner of which is First Industrial Realty Trust, Inc., a Maryland corporation;



     FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is qualified as a real estate
investment trust whose principal place of business is 311 South Wacker Drive, Suite 3900, Chicago,
Illinois 60606 (“General Partner”);



     JPMORGAN CHASE BANK, N.A. (“JPMCB”), a national bank organized under the laws of the
United States of America having an office at 383 Madison Avenue, 40th Floor, New York, New York
10179 as Administrative Agent (“Administrative Agent”) for the Lenders (as defined below);
and



     Those Lenders identified on the signature pages hereto.



RECITALS




     A. Borrower is primarily engaged in the business of acquiring, developing, owning and
operating bulk warehouse and light industrial properties.



     B. Borrower, the General Partner, the Administrative Agent and certain of the Lenders are
parties to the “Existing Credit Agreement” (as defined below).



     C. The Borrower has requested that the Existing Credit Agreement be amended and restated, to
provide for certain term loans, and to amend certain other provisions of the Existing Credit
Agreement further as hereinafter set forth. The Administrative Agent and the Lenders have agreed
to do so.



     D. General Partner is fully liable for the obligations of Borrower hereunder by virtue of its
status as the sole general partner of Borrower and as guarantor under the Guaranty.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree to amend and restate the Existing Credit Agreement in its entirety to read as
follows:



ARTICLE I.




DEFINITIONS AND ACCOUNTING TERMS



     1.1. Definitions. As used in this Agreement, the following terms have the meanings
set forth below:



 









 





     “Absolute Interest Period” means, with respect to a Competitive Bid Loan made at an
Absolute Rate, a period of up to 180 days as requested by Borrower in a Competitive Bid Quote
Request and confirmed by a Lender in a Competitive Bid Quote but in no event extending beyond the
Maturity Date. If an Absolute Interest Period would end on a day which is not a Business Day, such
Absolute Interest Period shall end on the next succeeding Business Day.



     “Absolute Rate” means a fixed rate of interest (rounded to the nearest 1/100 of 1%)
for an Absolute Interest Period with respect to a Competitive Bid Loan offered by a Lender and
accepted by the Borrower at such rate under Section 2.18.



     “Adjusted EBITDA” means for any Person the sum of EBITDA for such Person and such
Person’s reported corporate overhead for itself and its Subsidiaries; provided that “Adjusted
EBITDA” shall have deducted overhead related to specific properties.



     “Adjusted LIBOR Rate” means, with respect to (x) a Eurocurrency Borrowing in Dollars
for the relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base LIBOR Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such LIBOR Interest Period, plus, (ii) in the case of
ratable Eurocurrency Borrowings, the LIBOR Applicable Margin in effect from time to time during
such LIBOR Interest Period, or in the case of Eurocurrency Borrowings made as Competitive Bid
Loans, the Competitive LIBOR Margin established in the Competitive Bid Quote applicable to such
Competitive Bid Loan or (y) a Eurocurrency Borrowing in Qualified Foreign Global Currencies, the
sum of the Base LIBOR Rate applicable to such LIBOR Interest Period, the LIBOR Applicable Margin
and the Mandatory Costs.



     “Adjusted Base Rate” means a floating interest rate equal to (a) the highest of (i)
the Prime Rate, (ii) the Federal Funds Effective Rate from time to time plus 0.5%; and
(iii) the Base LIBOR Rate for a one month interest period on such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of
doubt, the Base LIBOR Rate for any day shall be based on the rate
appearing on the Page LIBOR 01 of the
Reuters screen (or on any successor or substitute page of such page) at approximately 11:00 a.m.
London time on such day) plus (b) the then-current Base Rate Applicable Margin.



     “Adjusted Base Rate Borrowing” means a Borrowing that bears interest at the Adjusted
Base Rate.



     “Administrative Agent” means JPMCB, in its capacity as contractual representative of
the Lenders pursuant to Article XII, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to Article XII, it being understood that matters
concerning Qualified Foreign Global Currency Loans will be administered by J.P. Morgan Europe
Limited.



     “Administrative Office” means the New York Administrative Office or the London
Administrative Office, as applicable.



     “Affiliate” means any Person directly or indirectly controlling, controlled by or
under direct or indirect common control with any other Person. A Person shall be deemed to control
another Person if the controlling Person owns ten percent (10%) or more of any class of voting



2









 





securities 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 Credit Commitment” means, as of any date, the total of all Aggregate
Revolving Credit Commitments and Aggregate Term Loan Commitments, which as of the Agreement
Execution Date is $400,000,000.



     “Aggregate Revolving Credit Commitment” means, as of any date, the total of all
Domestic Revolving Commitments and Global Revolving Commitments, which as of the Agreement
Execution Date is $200,000,000, subject to Borrower’s right to reduce the Aggregate Revolving
Credit Commitment pursuant to Section 2.19.



     “Aggregate Term Loan Commitment” means, as of any date, the total of all Term Loan
Commitments, which as of the Agreement Execution Date is $200,000,000.



     “Agreement” means this Sixth Amended and Restated Unsecured Revolving Credit and Term
Loan Agreement and all amendments, modifications and supplements hereto.



     “Agreement
Execution Date” shall mean October 22, 2010, the date on which all of the
parties hereto have executed this Agreement.



     “Alternative Currency” means Canadian Dollars and any other currency that is freely
available, freely transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, provided that such currency is
acceptable to the Administrative Agent and the applicable Issuing Bank.



     “Alternative Currency LC Exposure” means at any time, the sum of (a) the Dollar
Equivalent of the aggregate undrawn and unexpired amount of all outstanding Alternative Currency
Letters of Credit at such time plus (b) the Dollar Equivalent of the aggregate principal amount of
all LC Disbursements in respect of Alternative Currency Letters of Credit that have not yet been
reimbursed at such time.



     “Alternative Currency Letter of Credit” means a Facility Letter of Credit denominated
in an Alternative Currency.



     “Applicable Cap Rate” means 8.50%.



     “Applicable Margin” means the applicable margins set forth in the table in
Section 2.9 used in calculating the interest rate applicable to the various types of
Borrowings, which shall vary from time to time in accordance with the long term, senior unsecured
debt ratings of Borrower and General Partner in the manner set forth in Section 2.9.



     “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.



3









 





     “Arranger” means J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and their
successors in their capacity as Joint Lead Arrangers.



     “Asset Sale” means any sale or other disposition by the Consolidated Operating
Partnership of any Property or other assets (excluding any proceeds resulting from the casualty or
condemnation of such Property or other assets, to the extent such proceeds are used to rebuild such
Properties or assets within 365 days of receipt of such proceeds) that yields gross proceeds equal
to the aggregate of (i) all cash proceeds, plus (ii) the initial principal amount of any non-cash
proceeds consisting of notes or other debt securities, plus (iii) the fair market value of other
non-cash proceeds, if and to the extent that the aggregate of (i), (ii) and (iii) exceeds $500,000.



     “Assets Under Development” means, as of any date of determination, any Project which
is under construction and then treated as an asset under development under GAAP.



     “Assumed Facility Outstandings” is defined in Section 9.7(e) hereof.



     “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



     “Base LIBOR Rate” means, with respect to any Eurocurrency Borrowing, for any Interest
Period, the rate appearing Page LIBOR 01 of the Reuters screen (or any successor to or substitute for
such screen, providing rate quotations comparable to those currently provided on such page of such
screen, as determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to deposits in Dollars or the relevant Qualified Global
Currency, as the case may be, in the relevant interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for deposits
in such currency with a maturity comparable to such Interest Period. If such rate is not available
at such time for any reason, the “Base LIBOR Rate” with respect to such Eurocurrency
Borrowing for such Interest Period shall be the rate at which deposits in the lowest multiple of
1,000,000 units of the relevant currency, the Dollar Equivalent of which is at least $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.



4









 





     “Base Rate Applicable Margin” means the Applicable Margin in effect for an Adjusted
Base Rate Borrowing as determined in accordance with Section 2.9 hereof.



     “Borrower” means First Industrial, L.P., along with its permitted successors and
assigns.



     “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect, (b) a Swingline Loan, or (c) a Competitive Bid Loan.



     “Borrowing Date” means a Business Day on which a Borrowing is made to the Borrower.



     “Borrowing Notice” is defined in Section 2.7 hereof.



     “Business Day” means a day, other than a Saturday, Sunday or holiday, on which banks
are open for business in New York City (with respect to Loans denominated in Dollars) or London,
England (with respect to Loans denominated in a Qualified Foreign Global Currency and with respect
to Adjusted LIBOR Rate); provided that with respect to any borrowings, disbursements and
payments in respect of and calculations, interest rates and Interest Periods pertaining to
Eurocurrency Loans, such day is also a day on which banks are open for general business in the
principal financial center of the country of the relevant currency.



     “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.



     “Cash Equivalents” shall mean (i) short-term obligations of, or fully guaranteed by,
the United States of America, (ii) commercial paper rated A-1 or better by Standard and Poor’s
Corporation or P-1 or better by Moody’s Investors Service, Inc., or (iii) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign) having capital and
surplus in excess of $100,000,000; provided in each case that the same provides for payment of both
principal and interest (and not principal alone or interest alone) and is not subject to any
contingency regarding the payment of principal or interest, provided that all such Cash Equivalents
would qualify as cash equivalents in accordance with GAAP.



     “Change in Law” has the meaning set forth in Section 4.1.



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests of the General Partner representing more than 40% of the
aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the
General Partner, or (b) the occupation of a majority of the seats (other than vacant seats) on the
board of directors of the General Partner by Persons who were neither (i) nominated by the board of
directors of the General Partner nor (ii) appointed by directors so nominated.



     “Class” means when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans, Global



5









 





Revolving Loans, Term Loans, Swingline Loans or Competitive Bid Loans, and, when used in
reference to any Commitment, refers to whether such Commitment is a Domestic Revolving Commitment,
a Global Revolving Commitment or a Term Loan Commitment.




     “Closing Date” means the date on which the conditions precedent in Section 5
are satisfied in accordance therewith and this Agreement becomes effective.



     “Code” means the Internal Revenue Code of 1986 as amended from time to time, or any
replacement or successor statute, and the regulations promulgated thereunder from time to time.



     “Collateral Letter of Credit” means any irrevocable unconditional Letter of Credit
issued in the name of the Administrative Agent for the benefit of the Lenders in form and substance
satisfactory to the Administrative Agent and drawn on a bank having a rating of at least AA by S&P
and otherwise satisfactory to the Administrative Agent.



     “Commitment” means, for each Lender, a Domestic Revolving Commitment, a Global
Revolving Commitment, a Term Loan Commitment or any combination thereof.



     “Competitive Bid Borrowing Notice” is defined in Section 2.18(f).



     “Competitive Bid Lender” means a Lender which has a Competitive Bid Loan outstanding.



     “Competitive Bid Loan” is a Loan made pursuant to Section 2.18 hereof.



     “Competitive Bid Note” means the promissory note payable to the order of each Lender
in the form attached hereto as Exhibit B-2 to be used to evidence any Competitive Bid Loans
which such Lender elects to make (collectively, the “Competitive Bid Notes”).



     “Competitive Bid Quote” means a response submitted by a Lender to the Administrative
Agent with respect to a Competitive Bid Quote Request in the form attached as Exhibit C-3.



     “Competitive Bid Quote Request” means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.



     “Competitive LIBOR Margin” means, with respect to any Competitive Bid Loan for a LIBOR
Interest Period, the percentage established in the applicable Competitive Bid Quote which is to be
used to determine the interest rate applicable to such Competitive Bid Loan.



     “Consolidated Leverage Ratio” means the ratio of Consolidated Total Indebtedness to
Implied Capitalization Value of the Consolidated Operating Partnership.



     “Consolidated Operating Partnership” means the Borrower, the General Partner and any
other subsidiary partnerships or entities of either of them which are required under GAAP to be
consolidated with the Borrower and the General Partner for financial reporting purposes.



     “Consolidated Secured Debt” means as of any date of determination, the sum of (a) the
aggregate principal amount of all Indebtedness of the Consolidated Operating Partnership



6









 





outstanding at such date which is secured by a Lien on any asset or Capital Stock of
Consolidated Operating Partnership, including without limitation loans secured by mortgages, stock,
or partnership interests, but excluding Defeased Debt and (b) the amount by which the aggregate
principal amount of all Indebtedness of the Subsidiaries of the Borrower or General Partner
outstanding at such date exceeds $5,000,000 (including, for the avoidance of doubt, Guarantee
Obligations of the Subsidiaries of the Borrower or General Partner in respect of primary
obligations of the Borrower or General Partner), without duplication of any Indebtedness included
under clause (a).




     “Consolidated Senior Unsecured Debt” means as of any date of determination, the
aggregate principal amount of all Indebtedness of the Consolidated Operating Partnership
outstanding at such date other than (a) Indebtedness which is contractually subordinated to the
Indebtedness of the Consolidated Operating Partnership under the Loan Documents on terms acceptable
to the Administrative Agent and (b) that portion of Consolidated Secured Debt described in clause
(a) of that definition.



     “Consolidated Total Indebtedness” means as of any date of determination, all
Indebtedness of the Consolidated Operating Partnership outstanding at such date, determined on a
consolidated basis in accordance with GAAP, after eliminating intercompany items; provided that for
purposes of defining “Consolidated Total Indebtedness” the term “Indebtedness” shall not include
the short term debt (e.g. accounts payable, short term expenses) of Borrower or General Partner or
Defeased Debt.



     “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 all or
any of the entities in the Consolidated Operating Partnership, are treated as a single employer
under Sections 414(b) or 414(c) of the Code.



     “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender
or any other Lender.



     “Currencies” means the then lawful currency of a particular nation at such time
whether or not the name of such currency is the same as it was on the date of this Agreement.



     “Debt Service” means for any period, (a) Interest Expense for such period plus
(b) the aggregate amount of regularly scheduled principal payments of Indebtedness (excluding both
(i) optional prepayments and balloon principal payments due on maturity in respect of any
Indebtedness and (ii) Quarterly Amortization Payments) required to be made during such period by
the Borrower, or any of its consolidated Subsidiaries plus (c) a percentage of all such
regularly scheduled principal payments required to be made during such period by any Investment
Affiliate on Indebtedness (excluding optional prepayments and balloon principal payments due on
maturity in respect of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such Indebtedness for which the
Borrower or any consolidated Subsidiary is liable and (y) the percentage ownership interest in such
Investment Affiliate held by the Borrower and any consolidated Subsidiaries, in the aggregate,
without duplication.



7









 





     “Default” means an event which, with notice or lapse of time or both, would become an
Event of Default.



     “Default Rate” means with respect to any Borrowing, a rate equal to the interest rate
applicable to such Borrowing plus three percent (3%) per annum.



     “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party
any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such
Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified
and including the particular default, if any) has not been satisfied, (b) has notified the Borrower
or any Credit Party in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such Lender’s good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by a Credit Party, acting in good faith, to provide a certification in writing from
an authorized officer of such Lender that it will comply with its obligations (and is financially
able to meet such obligations) to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d) has
become the subject of a Bankruptcy Event.



     “Defeased Debt” means that portion of debt which has already been defeased by
depositing collateral in the form of obligations supported by the credit of the United States
government in such amounts as are required and permitted under the terms of the applicable loan
documents.



     “Designated Lender” means any Person who has been designated by a Lender to fund
Competitive Bid Loans pursuant to a Designation Agreement in the form attached hereto as
Exhibit J.



     “Dollars” and “$” mean United States Dollars.



     “Dollar Equivalent” means, on any date of determination, (a) for the purposes of
determining compliance with Article VIII or Article IX or the existence of a Default under Article
X (other than as set forth in clause (b) below) with respect to any amount denominated in a
currency other than Dollars, the equivalent in Dollars of such amount, determined in good faith by
the Borrower in a manner consistent with the way such amount is or would be reflected on the
Borrower’s audited consolidated financial statements for the fiscal year in which such
determination is made and (b) solely with respect to determining the outstanding amount hereunder
denominated in an Alternative Currency or a Qualified Foreign Global Currency, the amount of
Dollars that may be purchased with such amount of such currency at the Exchange



8









 





Rate (determined as of the most recent Exchange Rate Date) with respect to such currency on
such date.




     “Domestic Percentage” means, with respect to any Domestic Revolving Lender, the
percentage of the total Domestic Revolving Commitments represented by such Lender’s Domestic
Revolving Commitment. If the Domestic Revolving Commitments have terminated or expired, the
Domestic Percentages shall be determined based upon the Domestic Revolving Commitments most
recently in effect, giving effect to any assignments.



     “Domestic Revolving Commitment” means with respect to each Lender, the commitment, if
any, of such Lender to make Domestic Revolving Loans and to acquire participations in Facility
Letters of Credit and Swingline Loans hereunder, as such commitment may be changed from time to
time pursuant to this Agreement. The amount of each Lender’s Domestic Revolving Commitment as of
the date hereof is set forth on Exhibit A or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Domestic Revolving Commitment, as applicable. The
aggregate amount of the Domestic Revolving Commitments is $135,600,000 as of the Agreement
Execution Date.



     “Domestic Revolving Exposure” means with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Domestic Revolving Loans and its LC Exposure and
Swingline Exposure at such time.



     “Domestic Revolving Facility” is defined in the definition of Facility.



     “Domestic Revolving Lender” means a Lender with a Domestic Revolving Commitment or
with Domestic Revolving Exposure.



     “Domestic Revolving Loan” means a Loan made pursuant to Section 2.1(a) (i)



     “EBITDA” means, with respect to any Person, income before extraordinary items, without
deduction of any losses related to initial offering costs of preferred stock which are written off
due to the redemption of such preferred stock, and excluding any gains or losses from pay-off or
retirement of debt and gains/losses on sales of Properties, as reported by such Person and its
Subsidiaries on a consolidated basis in accordance with GAAP (reduced to eliminate any income from
Investment Affiliates of such Person, any interest income and, with respect to the Consolidated
Operating Partnership, any income from the assets used for Defeased Debt), plus Interest Expense,
depreciation, amortization and income tax (if any) expense plus a percentage of such income
(adjusted as described above) of any such Investment Affiliate equal to the allocable economic
interest in such Investment Affiliate held by such Person and any Subsidiaries, in the aggregate
(provided that no item of income or expense shall be included more than once in such calculation
even if it falls within more than one of the foregoing categories).



     “Effective Date” means each Borrowing Date and, if no Borrowing Date has occurred in
the preceding calendar month, the first Business Day of each calendar month.



     “Environmental Laws” means any and all Federal, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental



9









 





Authority having jurisdiction over the Borrower, its Subsidiaries or Investment Affiliates, or
their respective assets, and regulating 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 operations of the Borrower, any
Investment Affiliate, or any Subsidiary or any of their respective assets or Properties.




     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, if such equity ownership interests have ordinary voting rights.



     “Equity Value” is defined in Section 10.10 hereof.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and
regulations promulgated thereunder from time to time.



     “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBOR Rate.



     “Exchange Rate” means, on any day, for purposes of determining the Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into Dollars at the
time of determination on such day on the Reuters WRLD Page for such currency. In the event that
such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower, or, in the absence of such an agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange operations in respect of
such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of Dollars for delivery two (2) Business Days later; provided that if at
the time of any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.



     “Exchange Rate Date” means, if on such date any outstanding Revolving Exposure is (or
any Revolving Exposure that has been requested at such time would be) denominated in a currency
other than Dollars, each of:




     (a) the first Business Day of each calendar month,




     (b) if a Default has occurred and is continuing, the date a Sharing Event occurs and
any other Business Day designated as an Exchange Rate Date by the Administrative Agent in
its sole discretion, and




     (c) each date (with such date to be reasonably determined by the Administrative Agent)
that is on or about the effective date of (i) a Borrowing Notice or a
Conversion/Continuation Notice with respect to any Borrowing or (ii) each request for



10









 






the issuance, amendment, renewal or extension of any Facility Letter of Credit
denominated in a currency other than Dollars.



     “Event of Default” means any event set forth in Article X hereof.



     “Excluded Taxes” means, in the case of each Lender or applicable Lending Installation
and the Agent, taxes imposed on its overall net income, 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 of such Lender’s applicable Lending Installation is located.



     “Existing Credit Agreement” means that certain Fifth Amended and Restated Unsecured
Revolving Credit Agreement dated as of September 28, 2007, as amended by the First Amendment
thereto and as may have been further amended from time to time.



     “Facility” means each of (a) the Domestic Revolving Commitments and the extensions of
credit made thereunder (the “Domestic Revolving Facility”), (b) the Global Revolving
Commitments and the Global Revolving Loans made hereunder (the “Global Revolving Facility”
and, together with the Domestic Revolving Facility, the “Revolving Facility”) and (c) the
Term Loan Commitments and Term Loans made hereunder (the “Term Facility” and together with
the Revolving Facility, the “Facilities”).



     “Facility Fee” and “Facility Fee Rate” are defined in Section 2.10(b).



     “Facility Letter of Credit” means a Financial Letter of Credit or Performance Letter
of Credit issued under the Domestic Revolving Facility.



     “Facility Letter of Credit Fee” is defined in Section 3.8.



     “Federal Funds Effective Rate” means, for any day, an interest 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 for such day
(or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 11 a.m. (New York time) on such day on such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent in its sole discretion.



     “FIMC” means First Industrial Mortgage Corporation, a Delaware corporation, and the
sole general partner of the Mortgage Partnership. FIMC is a wholly-owned subsidiary of the General
Partner.



     “Financial Letter of Credit” means any standby Letter of Credit which represents an
irrevocable obligation to the beneficiary on the part of the Issuing Bank (i) to repay money
borrowed by or advanced to or for the account of the account party or (ii) to make any payment on
account of any indebtedness undertaken by the account party, in the event the account party fails
to fulfill its obligation to the beneficiary.



11









 





     “Financing Partnership” means First Industrial Financing Partnership, L.P., a Delaware
limited partnership. Borrower and General Partner, either directly or indirectly, collectively own
100% of the partnership interests of the Financing Partnership.



     “Fitch” means Fitch, Inc.



     “Fixed Charge Coverage Ratio” is defined in Section 9.7(a).



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



     “GAAP” means generally accepted accounting principles in the United States of America
consistent with those utilized in preparing the audited financial statements of the Borrower
required hereunder.



     “General Partner” means First Industrial Realty Trust, Inc., a Maryland corporation
that is listed on the New York Stock Exchange and is qualified as a real estate investment trust.
General Partner is the sole general partner of Borrower.



     “Global Percentage” means, with respect to any Global Revolving Lender, the percentage
of the total Global Revolving Commitments represented by such Lender’s Global Revolving Commitment.
If the Global Revolving Commitments have terminated or expired, the Global Percentages shall be
determined based upon the Global Revolving Commitments most recently in effect, giving effect to
any assignments.



     “Global Revolving Facility” is defined in the definition of Facility.



     “Global Revolving Commitment” means with respect to each Lender, the commitment, if
any, of such Lender to make Global Revolving Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender’s Global Revolving Exposure hereunder, as such
commitment may be changed from time to time pursuant to this Agreement. The amount of each
Lender’s Global Revolving Commitment as of the date hereof is set forth on Exhibit A, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed its Global Revolving
Commitment, as applicable. The aggregate amount of the Global Revolving Commitments is $64,400,000
as of the date hereof.



     “Global Revolving Exposure” means with respect to any Lender at any time, the sum of
(a) the aggregate outstanding principal amount of such Lender’s Global Revolving Loans at such time
that are denominated in Dollars plus (b) the Dollar Equivalent of the aggregate outstanding
principal amount of such Lender’s Global Revolving Loans at such time that are denominated in
Qualified Foreign Global Currencies.



12









 





     “Global Revolving Lender” means a Lender with a Global Revolving Commitment or with
Global Revolving Exposure.



     “Global Revolving Loan” means a Loan made pursuant to Section 2.1 (a)(ii).



     “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.



     “Gross Revenues” means total revenues, calculated in accordance with GAAP.



     “Guarantee Obligation” means as to any Person (the “guaranteeing person”), any
obligation (determined without duplication) of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) 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.



     “Guaranty” means the Guaranty executed by the General Partner in the form attached
hereto as Exhibit D.



     “Implied Capitalization Value” means for any Person as of any date, the sum of (i) the
quotient of (x) the Adjusted EBITDA for such Person during the most recent four fiscal quarters
(which Adjusted EBITDA shall exclude any Adjusted EBITDA attributable to all Assets Under
Development or Rollover Projects, and which Adjusted EBITDA attributable to each Project which was
formerly a Rollover Project shall not be less than zero), and (y) the Applicable Cap Rate, plus
(ii) an amount equal to the then current book value of each Asset Under Development, plus (iii) the
then current book value of Unimproved Land, plus (iv) with respect to each Rollover Project, an
amount equal to 50% of the then-current book value, determined in accordance with GAAP, of such
Rollover Project (provided that the Rollover Projects shall at no



13









 





time comprise more than 10% of Implied Capitalization Value), plus (v) an amount equal to 100%
of unrestricted cash and unrestricted cash equivalents, including any cash on deposit with a
qualified intermediary with respect to a deferred tax-free exchange (and specifically excluding any
cash or cash equivalents being used to support Defeased Debt), plus (vi) an amount equal to 100% of
the then-current book value, determined in accordance with GAAP, of all first mortgage receivables
on income producing commercial properties; provided that in no event shall the aggregate
amount of Implied Capitalization Value from the items set forth in clauses (ii), (iii), (iv) and
(vi) exceed 25% of the total Implied Capitalization Value. For purposes of computing the Implied
Capitalization Value, (A) Adjusted EBITDA may be increased from quarter to quarter by the amount of
net cash flow from new leases of space at the Properties (where such net cash flow has not then
been included in EBITDA) which have a minimum term of one year and (B) Properties which either
(i) were acquired during the most recent four fiscal quarters and/or (ii) were previously Assets
Under Development but which have been completed during such four quarter period and have at least
some tenants in possession of the respective leased spaces and conducting business operations
therein each will be included in the calculation of Implied Capitalization Value using pro forma
EBITDA for such four quarter period, so long as a “new acquisition/opening summary” form is
submitted to, and approved by, Administrative Agent for each new acquisition or newly-opened
Property during such four quarter period.




     “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 and other accounts
payable, and accrued expenses 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 obligations of such Person under financing leases and capital leases,
(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 Consolidated Operating Partnership, Guarantee Obligations of any
member of the Consolidated Operating Partnership in respect of primary obligations of any other
member of the Consolidated Operating Partnership), (g) all reimbursement obligations of such Person
for letters of credit and other contingent liabilities, (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, and (l) such Person’s
pro rata share of debt in Investment Affiliates and any loans where such Person is liable as a
general partner.



     “Indentures” means, collectively, the Indenture dated as of May 13, 1997 between the
Borrower and the trustee party thereto, the Supplemental Indentures thereto, and any and all
additional indentures and indenture supplements entered into by the Borrower in accordance with the
Credit Agreement after the Effective Date, each as amended and in effect from time to time.



14









 





     “Insolvency” means insolvency as defined in the United States Bankruptcy Code, as
amended. “Insolvent” when used with respect to a Person, shall refer to a Person who
satisfies the definition of Insolvency.



     “Interest Expense” means all interest expense of the Consolidated Operating
Partnership determined in accordance with GAAP plus (i) capitalized interest not covered by
an interest reserve from a loan facility, plus (ii) the allocable portion (based on
liability) of any accrued or paid interest incurred on any obligation for which the Consolidated
Operating Partnership is wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities, plus (iii) the allocable percentage of any
accrued or paid interest incurred on any Indebtedness of any Investment Affiliate, whether recourse
or non-recourse, equal to the applicable economic interest in such Investment Affiliate held by the
Consolidated Operating Partnership, in the aggregate, 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; provided, however, that “Interest Expense” shall not include interest on loans after
they become Defeased Debt.



     “Interest Period” means either an Absolute Interest Period or a LIBOR Interest Period.



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



     “Invitation for Competitive Bid Quotes” means a written notice to the Lenders from the
Administrative Agent with respect to a Competitive Bid Quote Request in the form attached as
Exhibit C-2 hereto.



     “Issuance Date” is defined in Section 3.4(a)(iii).



     “Issuance Notice” is defined in Section 3.4(c).



     “Issuing Bank” means, with respect to each Facility Letter of Credit, the Lender which
issues such Facility Letter of Credit. JPMCB shall be the sole Issuing Bank.



     “JPMCB” means JPMorgan Chase Bank, N.A.



     “Judgment Currency” is defined in Section 14.18(a).



     “Judgment Currency Conversion Date” is defined in Section 14.18(a).



     “LC Disbursement” means a payment made by the applicable Issuing Bank pursuant to a
Facility Letter of Credit.



     “LC Exposure” means at any time, the Dollar Equivalent of the sum of (a) the aggregate
undrawn amount of all outstanding Facility Letters of Credit, plus (b) the aggregate amount of all
LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.
The LC Exposure of any Domestic Revolving Lender at any time shall be its Domestic Percentage of
the total LC Exposure at such time.



15









 





     “Lenders” means, collectively, JPMCB, and the other Persons executing this Agreement
in such capacity, or any Person which subsequently executes and delivers any amendment hereto in
such capacity and each of their respective permitted successors and assigns. Where reference is
made to “the Lenders” in any Loan Document it shall be read to mean “all of the Lenders”.



     “Lending Installation” means any U.S. office of any Lender authorized to make loans
similar to the Borrowings described herein.



     “Letter of Credit” of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an account party or for
which such Person is in any way liable.



     “Letter of Credit Collateral Account” is defined in Section 3.9.



     “Letter of Credit Request” is defined in Section 3.4(a).



     “LIBOR Applicable Margin” means, as of any date with respect to any Eurocurrency
Borrowing, the Applicable Margin in effect for such Eurocurrency Borrowing as determined in
accordance with Section 2.9 hereof.



     “LIBOR Interest Period” means, with respect to a Eurocurrency Borrowing, a period of
one, two, three or six months or (with the consent of each Lender) twelve months, as selected in
advance by the Borrower, or a period of less than one month, as selected in advance by the Borrower
with the consent of the Administrative Agent and the Lenders.



     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof, any filing or agreement to file a financing statement as debtor under
the Uniform Commercial Code on any property leased to any Person under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination agreement in favor
of another Person).



     “Loan” means, with respect to a Lender, such Lender’s loan made pursuant to Article II
(or any conversion or continuation thereof).



     “Loan Documents” means this Agreement, the Notes, the Competitive Bid Notes, the
Guaranty and any and all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to time.



     “London Administrative Office” means the Administrative Agent’s office located at
125 London Wall, London EC2Y 5AJ, Attention of Agency Department, or such other office in London as
may be designated by the Administrative Agent by written notice to the Borrower and the Lenders.



     “Mandatory Costs” means the cost imputed to the Lenders of compliance with the
requirements of (a) the Bank of England or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b) European Central Bank,
expressed as a rate per annum and determined in accordance with Schedule 1.1.



16









 





     “Market Value Net Worth” means at any time, the Implied Capitalization Value of a
Person at such time minus the Indebtedness of such Person at such time.



     “Material Adverse Effect” means, with respect to any matter, that such matter in the
Required Lenders’ good faith judgment may (x) materially and adversely affect the business,
properties, condition or results of operations of the Consolidated Operating Partnership taken as a
whole, or (y) constitute a non-frivolous challenge to the validity or enforceability of any
material provision of any Loan Document against any obligor party thereto.



     “Material Adverse Financial Change” shall be deemed to have occurred if the Required
Lenders, in their good faith judgment, determine that a material adverse financial change has
occurred which could prevent timely repayment of any Borrowing hereunder or materially impair
Borrower’s ability to perform its obligations under any of the Loan Documents.



     “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, radon, polychlorinated biphenyls and urea-formaldehyde insulation.



     “Maturity Date” means September 28, 2012, or such earlier date on which the principal
balance of the Facility and all other sums due in connection with the Facility shall be due as a
result of the acceleration of the Facility.



     “Monetary Default” means any Default involving Borrower’s failure to pay any of the
Obligations when due.



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



     “Mortgage Partnership” means First Industrial Mortgage L.P., a Delaware limited
partnership. FIMC is the sole general partner of the Mortgage Partnership and Borrower is the sole
limited partner.



     “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. “Unrealized losses” means the fair market value of the cost to such
Person of unwinding 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 unwinding such Rate Management Transaction as
of the date of determination (assuming such Rate Management Transaction were to be terminated as of
that date).



     “Net Proceeds” means (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale or Recovery Event (other than any Lien pursuant to a Loan Document) and other



17









 





customary costs, fees and expenses actually incurred in connection with such Asset Sale or
Recovery Event (e.g. title insurance premiums, transfer taxes, survey costs, brokerage commission,
escrow fees) and net of taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing arrangements) and
(b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the
cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking
fees, accountants’ fees, underwriting discounts and commissions and other customary costs, fees and
expenses actually incurred in connection therewith.




     “New York Administrative Office” means the Administrative Agent’s office designated on
its signature page to this Agreement or such other office in New York City as may be designated by
the Administrative Agent by written notice to the Borrower and the Lenders.



     “Note” means, with respect to each Facility, the promissory note payable to the order
of each Lender in the amount of such Lender’s maximum applicable Commitment in the form attached
hereto as Exhibit B-1 (collectively, the “Notes”).



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



     “Obligation Currency” is defined in Section 14.18(a).



     “Other Taxes” has the meaning set forth in Section 4.5(ii).



     “Payment Date” means the last Business Day of each calendar quarter.



     “Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.



     “Participants” is defined in Section 13.2.1 hereof.



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.



     “Performance Letter of Credit” means any standby Letter of Credit which represents an
irrevocable obligation to the beneficiary on the part of the Issuing Bank to make payment on
account of any default by the account party in the performance of a nonfinancial or commercial
obligation.



     “Permitted
Liens” are defined in Section 9.5 hereof.



     “Person” means an individual, a corporation, a limited or general partnership, an
association, a joint venture or any other entity or organization, including a governmental or
political subdivision or an agent or instrumentality thereof.



18









 





     “Plan” means an employee benefit plan as defined in Section 3(3) of ERISA, whether or
not terminated, as to which the Borrower or any member of the Controlled Group may have any
liability.



     “Prime Rate” means a rate per annum equal to the prime rate of interest announced by
the Administrative Agent or its Parent from time to time (which is not necessarily the lowest rate
charged to any customer). Each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.



     “Principal Pay-down” is defined in Section 2.2(c) hereof.



     “Project” means any real estate asset which is 100% owned by the Borrower or by any
Wholly-Owned Subsidiary and which is operated as an industrial property.



     “Property” means each parcel of real property owned or operated by the Borrower, any
Subsidiary or Investment Affiliate.



     “Property Operating Income” means, with respect to any Property, for any period,
earnings from rental operations (computed in accordance with GAAP but without deduction for
reserves) attributable to such Property plus depreciation, amortization and interest
expense with respect to such Property 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). The earnings from
rental operations reported for the immediately preceding fiscal quarter 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 such fiscal quarter and to
exclude earnings during such quarter from any property not owned as of the end of the quarter.



     “Purchasers” is defined in Section 13.3.1 hereof.



     “Purpose Credit” has the meaning ascribed to it in Regulation U of the Board of
Governors of the Federal Reserve System.



     “Qualified Foreign Global Currency” means any Qualified Global Currency other than
Dollars.



     “Qualified Foreign Global Currency Loan” means any Loan denominated in a Qualified
Foreign Global Currency.



     “Qualified Global Currency” means (a) Dollars (borrowed in New York City), and
Canadian Dollars (borrowed in London), and (b) any other eurocurrency designated by the Borrower
with the consent of the Administrative Agent and each Global Revolving Lender (borrowed in London).



     “Qualified Global Currency Borrowing” means any Borrowing comprised of Qualified
Global Currency Loans.



19









 





     “Qualified Global Currency Loan” means any Loan denominated in a Qualified Global
Currency.



     “Qualified Officer” means, with respect to any entity, the chief financial officer,
chief accounting officer or controller of such entity if it is a corporation or of such entity’s
general partner if it is a partnership.



     “Quarterly Amortization Payment” is defined in Section 2.2(c) hereof.



     “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 which is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index 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.



     “Rate Option” means the Adjusted Base Rate, the Adjusted LIBOR Rate or the Absolute
Rate (only as applicable to Competitive Bid Loans). The Rate Option in effect on any date shall
always be the Adjusted Base Rate unless the Borrower has properly selected the Adjusted LIBOR Rate
pursuant to Section 2.7 hereof or a Competitive Bid Loan pursuant to Section 2.18
hereof.



     “Rating Period” means any period during the term of the Facility during which the
Borrower’s or General Partner’s long-term, senior unsecured debt has been rated by at least two of
S&P, Moody’s, and Fitch and the lower of the highest two ratings is at least BBB- (S&P) or Baa3
(Moody’s) or an equivalent rating from Fitch.



     “Recovery Event” means any settlement of or payment in respect of any property or
casualty insurance claim or any condemnation proceeding relating to any Property.



     “Regulation D” means Regulation D 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 reserve requirements applicable to member
banks of the Federal Reserve System.



     “Reimbursement Obligations” means at any time, the aggregate of the Obligations of the
Borrower to the Lenders, the Issuing Bank and the Administrative Agent in respect of all



20









 





unreimbursed payments or disbursements made by the Lenders, the Issuing Bank and the
Administrative Agent under or in respect of the Facility Letters of Credit.




     “Repayment Obligation” is defined in Section 2.24 hereof.



     “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 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 waivers in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.



     “Required Facility Lenders” means, subject to Section 12.16(b) hereof, with respect to
any Facility, the holders of more than 51% of the Commitments for the applicable Facility (or, in
the case of the termination of the Revolving Commitments, the holders of more than 51% of the
aggregate unpaid principal amount of Revolving Exposure outstanding under such Facility, except
that for purposes of determining Required Facility Lenders for the Domestic Revolving Facility
after the termination of the Commitments, the outstanding Competitive Bid Loans of the Lenders
shall be included in their Revolving Exposures).



     “Required Lenders” means, subject to Section 12.16(b) hereof, Lenders in the
aggregate having at least 51% of the sum of (a) the aggregate unpaid principal amount of the Term
Loans then outstanding and (b) the Aggregate Revolving Commitment then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Exposure then outstanding.



     “Reserve Requirement” means, with respect to a LIBOR Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities.



     “Revolving Commitments” means the aggregate of the Domestic Revolving Commitments and
the Global Revolving Commitments.



     “Revolving Exposure” means with respect to any Lender at any time, the sum of such
Lender’s Domestic Revolving Exposure and Global Revolving Exposure.



     “Revolving Facility” is defined in the definition of Facility.



     “Revolving Lenders” means Domestic Revolving Lenders and Global Revolving Lenders.



     “Revolving Loans” means Domestic Revolving Loans and Global Revolving Loans.



     “Revolving Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving Commitment. If the
Revolving Commitments have terminated or expired, the Revolving Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to any assignments.




21












 





     “Rollover Projects” means those Projects which, due to no or low occupancy at
such Project, have a value, determined by dividing the Property Operating Income for such a Project
for the most recent four fiscal quarters by the Applicable Cap Rate, of less than 50% of book
value, provided that a Project shall no longer be treated as a Rollover Project after: (i) a period
of six consecutive full fiscal quarters has elapsed since such Project was first included as a
Rollover Project, or (ii) such Project has a value, determined by dividing the Property Operating
Income for such Project for the most recent four fiscal quarters by the Applicable Cap Rate, of
greater than 50% of book value.



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



     “Sharing Event” means (i) the occurrence of a Default under Section 10.10,
(ii) the termination of the Commitments pursuant to Section 11.1, or (iii) the acceleration
of the maturity date of the Loans by the Administrative Agent upon the occurrence of a Default.



     “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, and
provided such corporation, partnership or other entity is consolidated with such Person for
financial reporting purposes under GAAP.



     “Swingline Borrowings” means, as of any date, collectively, all Swingline Loans then
outstanding under this Facility.



     “Swingline Commitment” means the obligation of the Swingline Lenders to make Swingline
Loans not exceeding the aggregate amount of their Domestic Revolving Commitment.



     “Swingline Exposure” means the outstanding principal balance of all Swingline
Borrowings.



     “Swingline Lender” shall mean JPMCB in its capacity as a Lender.



     “Swingline Loan” means a Loan made by the Swingline Lenders under the special
availability provisions described in Section 2.17 hereof.



     “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.



     “Term Commitment” means with respect to each Lender, the commitment, if any, of such
Lender to make Term Loans hereunder, as such commitment may be changed from time to time pursuant
to this Agreement. The amount of each Lender’s Term Commitment as of the date
hereof is set forth in Exhibit A. The aggregate amount of the Term Commitment is
$200,000,000 as of the Agreement Execution Date.



22









 





     “Term Facility” is defined in the definition of Facility.



     “Term Lenders” means a Lender with a Term Commitment or outstanding Term Loans.



     “Term Loan” means a Loan made pursuant to Section 2.2 hereof.



     “Total Domestic Exposure” means at any time, the sum of the aggregate Domestic
Revolving Exposures for each of the Domestic Revolving Lenders.



     “Total Global Exposure” means at any time, the sum of the aggregate Global Revolving
Exposures for each of the Global Revolving Lenders.



     “Total Liabilities” means all Indebtedness plus all other GAAP liabilities of the
Borrower and its Subsidiaries.



     “Total Revolving Exposure” means at any time, the sum of the aggregate Revolving
Exposure for each of the Revolving Lenders.



     “Transferee” is defined in Section 13.4 hereof.



     “Triggering Transaction” in connection with Section 2.24 hereof, means (a) an
Asset Sale, (b) any incurrence of Indebtedness (other than purchase money indebtedness incurred to
finance an acquisition that is permitted by this Agreement, indebtedness incurred in order to
refinance existing indebtedness that does not increase the principal amount thereof, intercompany
indebtedness and Borrowings under the Facility) or (c) any issuance of equity by the Consolidated
Operating Partnership.



     “TRS” means a taxable REIT Subsidiary of the General Partner.



     “Type” when used in reference to any Loan or Borrowing, refers to the rate by
reference to which interest on such Loan, or on the Loans comprising such Borrowing, is determined
and the currency in which such Loan, or the Loans comprising such Borrowing, are denominated. For
purposes hereof, “rate” shall include the Adjusted LIBOR Rate and Adjusted Base Rate, and
“currency” shall include Dollars and any Qualified Global Currency permitted hereunder.



     “Unencumbered Asset” means any Project which as of any date of determination, (a) is
not subject to any Liens other than Permitted Liens set forth in Sections 9.6(i) through
9.6(v), (b) is not subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which prohibits or limits
the ability of the Borrower, or its Wholly-Owned Subsidiaries, as the case may be, to create,
incur, assume or suffer to exist any Lien upon any assets or Capital Stock of the Borrower, or any
of its Wholly-Owned Subsidiaries, (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 not subject to any Liens other than
Permitted Liens set forth in Sections 9.6(i) through 9.6(v)) on any assets or Capital Stock
of the Borrower
or any of its Wholly-Owned Subsidiaries or would entitle any Person to the benefit of any Lien
(but excluding the Permitted Liens set forth in Sections 9.6(i) through 9.6(v)) on such
assets or Capital Stock upon the occurrence of any contingency (including, without limitation,
pursuant to





23









 








an “equal and ratable” clause), (d) is not the subject of any material
architectural/engineering issue, as evidenced by a certification of Borrower, and (e) is materially
compliant with the representations and warranties in Article VI below. Notwithstanding the
foregoing, if any Project is a “Superfund” site under federal law or a site identified in writing
by the jurisdiction in which such Project is located as having significant environmental
contamination under applicable state law, Borrower shall so advise the Lenders in writing and the
Required Lenders shall have the right to request from Borrower a current detailed environmental
assessment (or one which is not more than two years old for Unencumbered Assets owned as of the
Agreement Execution Date), and, if applicable, a written estimate of any remediation costs from a
recognized environmental contractor and to exclude any such Project from Unencumbered Assets at
their election. No Project of a Wholly-Owned Subsidiary shall be deemed to be unencumbered unless
such Project and all Capital Stock of such Wholly-Owned Subsidiary or any other intervening
Wholly-Owned Subsidiary between the Borrower and such Wholly-Owned Subsidiary is unencumbered and
neither such Wholly-Owned Subsidiary nor any other intervening Wholly-Owned Subsidiary between the
Borrower and such Wholly-Owned Subsidiary has any Indebtedness for borrowed money (other than
Indebtedness due to the Borrower).




     “Unimproved Land” means land which constitutes a single tax parcel or separately
platted lot and on which construction of an industrial building has not commenced.



     “Value of Unencumbered Assets” means, as of any date, the sum of (a) the value of all
Unencumbered Assets that are not Assets Under Development (determined in the manner set forth
below), plus (b) any unrestricted cash, including any cash on deposit with a qualified
intermediary with respect to a deferred tax-free exchange, plus (c) an amount equal to 100%
of the then-current book value, determined in accordance with GAAP, of each first mortgage
receivable secured by an income producing commercial property, provided that such first mortgage
receivable is not subject to any Lien, plus (d) 100% of the then current book value of each
Asset Under Development that constitutes an Unencumbered Asset (provided that in no event shall the
aggregate amount of Value of Unencumbered Assets from the items set forth in clauses (b), (c), and
(d) exceed 20% of the total Value of Unencumbered Assets), plus (e) with respect to each
Rollover Project, an amount equal to 50% of the then-current book value, determined in accordance
with GAAP, of each Rollover Project (provided that the Rollover Projects shall at no time comprise
more than 10% of the Value of Unencumbered Assets); provided that in no event shall (x) the
aggregate amount of Value of Unencumbered Assets from Unencumbered Assets that are leased to a
single tenant exceed 5% of the total Value of Unencumbered Assets, (y) the aggregate amount of
Value of Unencumbered Assets from Unencumbered Assets that are located in a single Metropolitan
Statistical Area exceed 8% of the total Value of Unencumbered Assets and (z) the aggregate amount
of Value of Unencumbered Assets from Unencumbered Assets that have an occupancy rate of less than
50% exceed 10% of the total Value of Unencumbered Assets. Unencumbered Assets that are not Assets
Under Development shall be valued by dividing the Property Operating Income for such Project for
the most recent four fiscal quarters by the Applicable Cap Rate (provided that for the purpose of
such calculation, the Property Operating Income of each Unencumbered Asset that was formerly
a Rollover Project shall in no event be less than zero). If a Project has been acquired
during such calculation period then Borrower shall be entitled to include pro forma Property
Operating Income from such property for the entire calculation period in the foregoing calculation,
except





24









 








for purposes of the financial covenant comparing the Property Operating Income from
Unencumbered Assets during a quarter to Debt Service for such quarter. If a Project is no longer
owned as of the date of calculation, then no value shall be included based on capitalizing Property
Operating Income from such Project, except for purposes of such financial covenant comparing the
Property Operating Income from Unencumbered Assets during a quarter to Debt Service for such
quarter. For purposes hereof, Kenosha County, Wisconsin shall be deemed to be part of the
Metropolitan Statistical Area #33340, Milwaukee-Waukesha-West Allis, Wisconsin Metropolitan
Statistical Area.




     “Voluntary Prepayment” is defined in Section 2.24(b) hereof.



     “Wholly-Owned Subsidiary” means a member of the Consolidated Operating Partnership
100% of the ownership interests in which are owned, directly or indirectly, by the Borrower and the
General Partner in the aggregate.



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



     1.2. Financial Standards. All financial computations required of a Person under this
Agreement shall be made, and all financial information required under this Agreement shall be
prepared, in accordance with GAAP, except that if any Person’s financial statements are not
audited, such Person’s financial statements shall be prepared in accordance with the same sound
accounting principles utilized in connection with the financial information submitted to Lenders
with respect to the Borrower or the General Partner or the Properties in connection with this
Agreement and shall be certified by an authorized representative of such Person. Except as provided
below, if at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP. Notwithstanding the
foregoing, to the extent fair value accounting for financial instruments or lease accounting for
lessors applies to any financial computation or information required under this Agreement, such
financial computation or information shall be prepared in accordance with GAAP as in effect on the
date of this Agreement.



     1.3. Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Borrowings also
may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or
by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency
Revolving Borrowing”).




25












 





     1.4. Exchange Rates.




     (a) Not later than 1:00 p.m., New York City time, on each Exchange Rate Date on which
there are any Loans denominated in a Qualified Foreign Global Currency or any Alternative
Currency Letters of Credit, the Administrative Agent shall (i) determine the Exchange Rate
as of such Exchange Rate Date to be used for calculating the Dollar Equivalent amounts of
each currency in which a Global Revolving Loan, Alternative Currency Letter of Credit or
unreimbursed LC Disbursement is denominated and (ii) give notice thereof to the Borrower and
the Lenders. The Exchange Rates so determined shall remain effective until the next
succeeding Exchange Rate Date and shall (other than for the purpose of converting into
Dollars, under Sections 3.5, 3.6, 3.8, 3.9 and the
obligations of the Borrowers and the Domestic Revolving Lenders in respect of LC
Disbursements that have not been reimbursed when due) be the Exchange Rates employed in
converting any amounts between the applicable currencies pursuant to this Agreement.




     (b) Not later than 5:00 p.m., New York City time, on each Exchange Rate Date, the
Administrative Agent shall (i) determine the Global Revolving Exposure or the Alternative
Currency LC Exposure, as the case may be, on such date (after giving effect to any Global
Revolving Loans to be made or any Alternative Currency Letters of Credit to be issued,
renewed, extended or terminated in connection with such determination) and (ii) notify the
Borrower and, if applicable, each Issuing Bank of the results of such determination.



     1.5. Currency Conversion.




     (a) If more than one currency or currency unit are at the same time recognized by the
central bank of any country as the lawful currency of that country, then (i) any reference
in the Loan Documents to, and any obligations arising under the Loan Documents in, the
currency of that country shall be translated into or paid in the currency or currency unit
of that country designated by the Administrative Agent in consultation with Borrower and
(ii) any translation from one currency or currency unit to another shall be at the official
rate of exchange recognized by the central bank for conversion of that currency or currency
unit into the other, rounded up or down by the Administrative Agent as it deems appropriate.




     (b) If a change in any currency of a country occurs, this Agreement shall be amended
(and each party hereto agrees to enter into any supplemental agreement necessary to effect
any such amendment) to the extent that the Administrative Agent specifies to be necessary to
reflect the change in currency and to put the Lenders in the same position, so far as
possible, that they would have been in if no change in currency had occurred.



26









 





ARTICLE II.




THE FACILITY



     2.1. The Revolving Facility.




     (a) Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrower and General Partner contained herein, each Lender
in the applicable Revolving Facility agrees, severally and not jointly, (i) to make Domestic
Revolving Loans in Dollars to the Borrower from time to time prior to the Maturity Date in
an aggregate principal amount that will not result in such Lender’s Domestic Revolving
Exposure exceeding such Lender’s Domestic Revolving Commitment, or the Total Domestic
Exposure plus the amount of all outstanding Competitive Bid Loans to exceed the aggregate
amount of the Domestic Revolving Commitment, and (ii) to make Global Revolving Loans in
Dollars or in one or more other Qualified Global Currencies (as specified in the Borrowing
Notices with respect thereto) from time to time prior to the Maturity Date in an aggregate
principal amount that will not result in such Lender’s Global Revolving Exposure exceeding
such Lender’s Global Revolving Commitment. The Borrowings may be ratable Adjusted Base Rate
Borrowings (but only Loans in Dollars can be Adjusted Base Rate Borrowings), ratable
Eurocurrency Borrowings, non-pro rata Swingline Loans or non-pro rata Competitive Bid Loans.
This Revolving Facility is a revolving credit facility and, subject to the provisions of
this Agreement, Borrower may request Borrowings from the Revolving Facility, repay such
Borrowings and reborrow such Borrowings at any time prior to the Maturity Date.




     (b) The Revolving Facility created by this Agreement, and the Revolving Commitments of
each Lender to lend hereunder, shall terminate on the Maturity Date, unless sooner
terminated in accordance with the terms of this Agreement.




     (c) In no event shall the Aggregate Revolving Commitment exceed Two Hundred Million
Dollars ($200,000,000).



     2.2. The Term Facility.




     (a) Term Commitments. Subject to the terms and conditions hereof, each Term
Lender severally agrees to make a Term Loan to the Borrower in Dollars on the Closing Date
in an amount not to exceed the amount of the Term Commitment of such Lender. The Term Loans
may from time to time be Eurocurrency Loans or Adjusted Base Rate Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with Sections 2.2(b)
and 2.8 hereof. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.




     (b) Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to (x) 10:00 A.M., New York City time, on the anticipated Closing Date, in the
case of an Adjusted Base Rate Borrowing and (y) 11:00 A.M., New York City time, three (3)
Business Days prior to the anticipated Closing Date, in the case of a Eurocurrency
Borrowing) requesting that the Term Lenders make the Term Loans on the Closing Date and
specifying the amount to be borrowed, whether such Term Loan shall be Eurocurrency Loans or
Adjusted Base Rate Loans and, in the case of Eurocurrency Loans, the initial LIBOR Interest
Period applicable thereto, which shall be



27









 






a period contemplated by the definition of “LIBOR Interest Period”. Upon receipt of
such notice the Administrative Agent shall promptly notify each Term Lender thereof. Not
later than 11:00 A.M., New York City time, on the Closing Date each Term Lender shall make
available to the Administrative Agent at the Administrative Office an amount in immediately
available funds equal to the Term Loan to be made by such Lender. The Administrative Agent
shall credit the account of the Borrower on the books of such office of the Administrative
Agent with the aggregate of the amounts made available to the Administrative Agent by the
Term Lenders in immediately available funds.




     If no election as to the Type of Term Loan is specified, then the requested Term Loan
shall be an Adjusted Base Rate Loan. If no LIBOR Interest Period is specified with respect
to any requested Eurocurrency Loan, then Borrower shall be deemed to have selected a LIBOR
Interest Period of one month’s duration. Promptly following receipt of a borrowing request
in accordance with this Section, the Administrative Agent shall advise each Term Lender of
the details thereof and of the amount of such Term Lender’s Term Loan to be made.




     Each Term Loan shall be made by the Term Lenders ratably in accordance with their
applicable Term Commitments; provided that the failure of any Term Lender to make its Term
Loan shall not in itself relieve any other Term Lender of its obligation to lend hereunder
(it being understood, however, that no Term Lender shall be responsible for the failure of
any other Term Lender to make any Term Loan required to be made by such other Term Lender).
Adjusted Base Rate Loans comprising any Term Loan shall be in an aggregate principal amount
that is (i) an integral multiple of $100,000 and not less than $2,000,000 or (ii) equal to
the remaining available balance of the applicable Term Commitments. Eurocurrency Loans
comprising any Term Loan shall be in an aggregate principal amount that is (i) an integral
multiple of $100,000 and not less than $2,000,000 or (ii) equal to the remaining available
balance of the applicable Term Commitments.




     Subject to Sections 4.1 and 4.3 hereof, each Eurocurrency Borrowing shall be
comprised entirely of Eurocurrency Loans as Borrower may request pursuant to Section
2.8 hereof. Each Term Lender may at its option make any Eurocurrency Loan by causing
any domestic or foreign branch or Affiliate of such Term Lender to make such Term Loan;
provided that any exercise of such option shall not affect the obligation of Borrower to
repay such Term Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time, subject to Sections 2.6 and 2.11
hereof. For purposes of the foregoing, Eurocurrency Borrowings having different LIBOR
Interest Periods, regardless of whether they commence on the same date, shall be considered
separate Borrowings.




     Notwithstanding any other provision of this Agreement, Borrower shall not be entitled
to request, or to elect to convert or continue, any Eurocurrency Borrowing if the LIBOR
Interest Period requested with respect thereto would end after the Maturity Date.




     (c) Repayment of Term Loans. Commencing on March 30, 2012 and continuing on
the last Business Day of each calendar quarter thereafter, the Borrower shall repay the
principal amount of the Term Loans in quarterly installments of



28









 






$10,000,000 payable to the Administrative Agent for the account of the Term Lenders
(each, a “Quarterly Amortization Payment”) with a final payment on the Maturity Date
equal to the outstanding principal amount of the Term Loans. If Borrower otherwise reduces
the outstanding principal amount due under the Term Loan Facility by any payment other than
a Quarterly Amortization Payment (such other payment, a “Principal Pay-down”), then
Borrower may deduct from any future Quarterly Amortization Payment, in the order of
maturity, all or a portion of the amount of such Principal Pay-down but only to the extent
the foregoing has not been deducted from another Quarterly Amortization Payment.



     2.3. Principal Payments.




     (a) Any outstanding Borrowings (other than Competitive Bid Loans) and all other unpaid
Obligations shall be paid in full by the Borrower on the Maturity Date. Each Competitive
Bid Loan shall be paid in full on the last day of the applicable Interest Period as
described in Section 2.18 below.




     (b) If on any Exchange Rate Date relating to the Global Revolving Facility, the Total
Global Exposure exceeds 105% of the total Global Revolving Commitments, the Borrower shall,
without notice or demand, within three (3) Business Days after such Exchange Rate Date,
prepay (or cause the Borrower to prepay) Global Revolving Loans in an aggregate amount such
that, after giving effect thereto, the Total Global Exposure does not exceed the total
Global Revolving Commitments. If on any Exchange Rate Date relating to the Domestic
Revolving Facility, the Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans exceeds 105% of the aggregate Domestic Revolving Commitments, the
Borrower shall, without notice or demand, within three (3) Business Days after such Exchange
Rate Date, prepay Borrowings or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section 3.9 in an
aggregate amount such that, after giving effect thereto, the Total Domestic Exposure plus
the amount of all outstanding Competitive Bid Loans does not exceed the aggregate Domestic
Revolving Commitments.



     2.4. Requests for Revolving Borrowings; Responsibility for Revolving Borrowings.
Ratable Revolving Borrowings shall be made available to Borrower by Administrative Agent in
accordance with Section 2.1(a) and Section 2.7 hereof. The obligation of each
Lender to fund its Domestic Percentage or Global Percentage, as applicable, of each ratable
Revolving Borrowing shall be several and not joint.



     2.5. Evidence of Credit Extensions. The Borrowings of each Lender outstanding at any
time (other than Competitive Bid Loans) shall be evidenced by the Notes. Each Note executed by the
Borrower shall be in a maximum principal amount equal to, with respect to each Lender, its
applicable percentage of the then current Aggregate Revolving Credit Commitment or Aggregate Term
Loan Commitment, as applicable. Each Lender shall record Borrowings and principal payments thereof
on the schedule attached to its Note or, at its option, in its records, and each Lender’s record
thereof shall be conclusive absent Borrower furnishing to such Lender conclusive and irrefutable
evidence of an error made by such Lender with respect to that Lender’s records. Notwithstanding
the foregoing, the failure to make, or an error in making, a



29









 





notation with respect to any Borrowing shall not limit or otherwise affect the obligations of
Borrower hereunder or under the Notes to pay the amount actually owed by Borrower to Lenders.




     2.6. Loans and Borrowings.




     (a) Each Loan (other than a Swingline Loan or Competitive Bid Loan) shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder.




     (b) Subject to Section 4.3, (i) each Borrowing denominated in Dollars shall be
comprised entirely of Adjusted Base Rate Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith and (ii) each Borrowing denominated in a Qualified Foreign
Global Currency shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan
shall be a Adjusted Base Rate Loan under the Domestic Revolving Facility. Each Competitive
Bid Loan shall be deemed outstanding under the Domestic Revolving Facility. Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.




     (c) No more than ten (10) Eurocurrency Borrowings may be outstanding at any one time
under the Facilities.




     (d) Notwithstanding any other provision of this Agreement, a Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.



     2.7. Requests for Revolving Borrowings.




     (a) To request a Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a “Borrowing Notice”) (A) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or if the request is
delivered in London, 11:00 a.m., London time), three Business Days before the date of the
proposed Revolving Borrowing (or if the request is delivered in London, four Business Days
before the date of the proposed Revolving Borrowing) or (B) in the case of a Adjusted Base
Rate Revolving Borrowing, not later than 11:00 a.m., New York City time, one (1) Business
Day before the date of the proposed Revolving Borrowing; provided that (x) any such notice
of a Adjusted Base Rate Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 3.5 may be given not later than 9:00 a.m.,
New York City time, on the date of the proposed Revolving Borrowing and (y) any such notice
of a Borrowing of Swingline Loans may be given not later than 11:00 a.m., New York City
time, on the date of such proposed Borrowing. Each such telephonic Borrowing Notice shall
be irrevocable and shall be confirmed promptly by delivery to the Administrative Agent of a
written Borrowing



30









 






Notice in a form reasonably approved by the Administrative Agent. Each such telephonic
and written Borrowing Notice shall specify the following information in compliance with
Section 2.7; (i) the Borrower requesting such Revolving Borrowing; (ii) the Class
and Type of the requested Revolving Borrowing; (iii) the aggregate amount of such Revolving
Borrowing; (iv) the date of such Revolving Borrowing, which shall be a Business Day; (v) in
the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto;
(vi) the location and number of the Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.7; and (vii) the currency of
such Revolving Borrowing (which shall be in Dollars in the case of Domestic Revolving Loans
and Swingline Loans, and Competitive Bid Loans, and otherwise shall be in a Qualified Global
Currency). If no election as to the currency of a Global Revolving Borrowing is specified
in any such notice, then the requested Revolving Borrowing shall be denominated in Dollars.
If no election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be a Adjusted Base Rate Borrowing if denominated in Dollars or a
Eurocurrency Borrowing if denominated in a Qualified Foreign Global Currency. If no
Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month’s duration.
Promptly following receipt of a Borrowing Notice in accordance with this Section, the
Administrative Agent shall advise each relevant Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Revolving Borrowing.




The Borrower shall also deliver together with each Borrowing Notice the compliance
certificate required in Section 5.2 and otherwise comply with the conditions set
forth in Section 5.2 for Borrowings.




Not later than 1:00 p.m. (New York City time) on each Borrowing Date, each Lender shall make
available its Loan or Loans, in funds immediately available in New York City to the
Administrative Agent. Administrative Agent will promptly make the funds so received from
the Lenders available to the Borrower.




Not later than 1:00 p.m. (London time) on each Borrowing Date for Loans in Qualified Foreign
Global Currency, each Lender shall make available its Loan or Loans, in funds immediately
available to the Administrative Agent. Administrative Agent will promptly make the funds so
received from the Lenders available to the Borrower.




     (b) Administrative Agent shall, as soon as practicable after receipt of a Borrowing
Notice, determine the Adjusted LIBOR Rate applicable to the requested ratable Eurocurrency
Borrowing and inform Borrower and Lenders of the same. Each determination of the Adjusted
LIBOR Rate by Administrative Agent shall be conclusive and binding upon Borrower in the
absence of manifest error.




     (c) If Borrower shall prepay a Eurocurrency Borrowing other than on the last day of the
LIBOR Interest Period applicable thereto, Borrower shall be responsible to pay all amounts
due to Lenders as required by Section 4.4 hereof. The Lenders shall not be
obligated to match fund their Eurocurrency Borrowings.



31









 






     (d) As of the end of each LIBOR Interest Period selected for a ratable Eurocurrency
Borrowing (other than Borrowings in a Qualified Foreign Global Currency), the interest rate
on the Eurocurrency Borrowing will become the Adjusted Base Rate, unless Borrower has once
again selected a LIBOR Interest Period in accordance with the timing and procedures set
forth in Section 2.8.




     (e) The right of Borrower to select the Adjusted LIBOR Rate for a Borrowing pursuant to
this Agreement is subject to the availability to Lenders of a similar option. If
Administrative Agent determines that (i) deposits of Dollars in an amount approximately
equal to the Eurocurrency Borrowing for which the Borrower wishes to select the Adjusted
LIBOR Rate are not generally available at such time in the London interbank eurodollar
market, or (ii) the rate at which the deposits described in subsection (i) herein are being
offered will not adequately and fairly reflect the costs to Lenders of maintaining an
Adjusted LIBOR Rate on a Borrowing or of funding the same in such market for such LIBOR
Interest Period, or (iii) reasonable means do not exist for determining an Adjusted LIBOR
Rate, or (iv) the Adjusted LIBOR Rate would be in excess of the maximum interest rate which
Borrower may by law pay, then in any of such events, Administrative Agent shall so notify
Borrower and Lenders and such Borrowing shall bear interest at the Adjusted Base Rate.



     2.8. Interest Elections.




     (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request (or as set forth in Section 2.7 if no
Interest Period is specified). Thereafter, a Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this Section. A Borrower
may elect different options with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. Notwithstanding the foregoing, a Borrower may not (i) elect to convert
the currency in which any Loans are denominated, (ii) elect to convert Qualified Foreign
Global Currency Loans from Eurocurrency Loans to Adjusted Base Rate Loans, (iii) elect an
Interest Period for Eurocurrency Loans that does not comply with Section 2.6(d),
(iv) elect to convert any Adjusted Base Rate Loans to Eurocurrency Loans that would result
in the number of Eurocurrency Borrowings exceeding the maximum number of Eurocurrency
Borrowings permitted under Section 2.6, (v) elect an Interest Period for
Eurocurrency Loans unless the aggregate outstanding principal amount of Eurocurrency Loans
(including any Eurocurrency Loans made to such Borrower in the same currency on the date
that such Interest Period is to begin) to which such Interest Period will apply complies
with the requirements as to minimum principal amount set forth in Section 2.11 or
(vi) elect to convert or continue any Swingline Loans.




     (b) To make an election pursuant to this Section (an “Interest Election
Request”), a Borrower shall notify the Administrative Agent of such election by



32









 






telephone by the time that a Borrowing Request would be required under Section
2.7 if such Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly by delivery
to the Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent (hereinafter referred to as a “Conversion/Continuation
Notice”).




     (c) Each telephonic and written Conversion/Continuation Notice shall specify the
following information in compliance with Section 2.6 and paragraph (a) of this
Section: (i) the Borrowing to which such Conversion/Continuation Notice applies; (ii) the
effective date of the election made pursuant to such Conversion/Continuation Notice, which
shall be a Business Day; (iii) whether the resulting Borrowing is to be a Adjusted Base Rate
Borrowing or a Eurocurrency Borrowing; and (iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after giving effect to such
election. If any such Conversion/Continuation Notice requests a Eurocurrency Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.




     (d) Promptly following receipt of a Conversion/Continuation Notice, the Administrative
Agent shall advise each relevant Lender of the details thereof and of such Lender’s portion
of each resulting Borrowing.




     (e) If the Borrower fails to deliver a timely Conversion/Continuation Notice with
respect to a Eurocurrency Borrowing denominated in Dollars prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the
end of such Interest Period such Borrowing shall be converted to a Adjusted Base Rate
Borrowing. If the Borrower fails to deliver a timely Conversion/ Continuation Notice with
respect to a Eurocurrency Borrowing denominated in a Qualified Foreign Global Currency prior
to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall automatically
continue as a Eurocurrency Loan having an Interest Period of one month.




     (f) Notwithstanding anything to the contrary contained in Sections 2.8, no
Borrowing may be converted into a Eurocurrency Borrowing or continued as a Eurocurrency
Borrowing (except with the consent of the Required Lenders) when any Monetary Default or
Event of Default has occurred and is continuing.



     2.9. Applicable Margins. The Base Rate Applicable Margin, the LIBOR Applicable Margin
to be used in calculating the interest rate applicable to different types of Borrowings, and the
Facility Fee Rate to be used in calculating the Facility Fee shall vary from time to time in
accordance with the ratings for Borrower’s or General Partner’s long-term, senior unsecured debt as
follows:



33









 





Revolving Loans




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Base Rate
	Rating Level of Lower of Two	 	LIBOR	 	 	 	 	 	Applicable
	Highest Ratings*	 	Applicable Margin	 	Facility Fee Rate	 	Margin
	A-/A3
	 	 	2.075	%	 	 	0.40	%	 	 	1.075	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB+/Baa1
	 	 	2.125	%	 	 	0.425	%	 	 	1.125	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB/Baa2
	 	 	2.225	%	 	 	0.45	%	 	 	1.225	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB-/Baa3
	 	 	2.50	%	 	 	0.475	%	 	 	1.50	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Below BBB- or Baa3
	 	 	2.75	%	 	 	0.50	%	 	 	1.75	%






Term Loans




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Base Rate
	Rating Level of Lower of Two	 	LIBOR	 	Applicable
	Highest Ratings*	 	Applicable Margin	 	Margin
	A-/A3
	 	 	2.475	%	 	 	1.475	%
	 
	 	 	 	 	 	 	 	 
	BBB+/Baa1
	 	 	2.55	%	 	 	1.55	%
	 
	 	 	 	 	 	 	 	 
	BBB/Baa2
	 	 	2.675	%	 	 	1.675	%
	 
	 	 	 	 	 	 	 	 
	BBB-/Baa3
	 	 	2.975	%	 	 	1.975	%
	 
	 	 	 	 	 	 	 	 
	Below BBB- or Baa3
	 	 	3.25	%	 	 	2.25	%
	 
	 	 	 	 	 	 	 	 







 




			
	*	 	The letter categories used above are established by reference to S&P and
Moody’s categories, respectively. At least one of S&P or Moody’s ratings must always
be included in the two ratings used





     All margins and fees change as and when the applicable rating level changes. In the event an
agency issues different ratings for the Borrower and the General Partner, then the higher rating of
the two entities shall be deemed to be the rating from such agency.



     2.10. Other Fees.




     (a) The Borrower shall pay the fee due to the Administrative Agent in connection with
Competitive Bid Loans as described in Section 2.18. The Borrower agrees to pay all
other fees payable to the Administrative Agent and J.P. Morgan Securities LLC pursuant to
the Borrower’s prior letter agreements with them.




     (b) The Borrower shall pay a fee (“Facility Fee”) to the Administrative Agent
for the account of the Revolving Lenders equal to the applicable Facility Fee Rate in effect
from time to time, as shown in Section 2.9 hereof (the “Facility Fee Rate”),
times the then aggregate amount of the Domestic Revolving Commitments and the Global
Revolving Commitments, to be shared among the Revolving Lenders based on each Lender’s
applicable percentage of the Aggregate Revolving Credit Commitment. The Facility Fee shall
be paid quarterly in arrears on the Payment Date.



34









 





     2.11. Minimum Amount of Each Borrowing. Each Eurocurrency Borrowing shall be in the
minimum amount of $2,000,000 (and in multiples of $100,000 if in excess thereof), and each Adjusted
Base Rate Borrowing shall be in the minimum amount of $1,000,000 (and in multiples of $100,000 if
in excess thereof), provided, however, that any Adjusted Base Rate Borrowing may be in the amount
of the unused Aggregate Commitment.



     2.12. Interest.




     (a) Subject to Section 2.14, the outstanding principal balance of the Loans
shall bear interest from time to time at a rate per annum equal to:




     (i) the Adjusted Base Rate; or




     (ii) at the election of Borrower in accordance with Section 2.8 with
respect to all or portions of the Obligations, the Adjusted LIBOR Rate.




     (b) All interest shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest accrued on each Borrowing (other than Competitive Bid Loans) shall be
payable on the first day of each calendar month in arrears from time to time while such
Borrowing is outstanding. Interest accrued on each Eurocurrency Borrowing shall also be
payable on the last day of the LIBOR Interest Period applicable thereto. Interest shall not
be payable for the day of any payment on the amount paid if payment is received by
Administrative Agent prior to 1:00 p.m. (New York City time). If any payment of principal
or interest on the Loans shall become due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a payment of
principal, such extension of time shall be included in computing interest due in connection
with such payment; provided that for purposes of Section 10.1 hereof, any payments
of principal described in this sentence shall be considered to be “due” on such next
succeeding Business Day.



     2.13. Method of Payment.




     (a) All payments of the Obligations hereunder shall be made, without set-off,
deduction, or counterclaim, in immediately available funds to Administrative Agent at the
New York Administrative office for payments in Dollars, and at the London Administrative
Office for payments in currencies other than Dollars, or at any other Lending Installation
of Administrative Agent specified in writing by Administrative Agent to Borrower, by 1:00
p.m. New York time (or if the payment is made to the London Administrative Office, 2:00 p.m.
London time) on the date when due and shall be applied ratably by Administrative Agent among
Lenders in the Domestic Revolving Facility or Global Revolving Facility, as the case may be.
Except as otherwise specified in this Agreement, each such payment shall be made in
Dollars. Each payment delivered to Administrative Agent for the account of any Lender
shall be delivered promptly by Administrative Agent to such Lender in the same type of funds
that Administrative Agent received at its address specified herein or at any Lending
Installation specified in a notice received by Administrative Agent from such Lender.
Payments not made by Administrative Agent within one Business Day after receipt shall accrue
interest at



35









 






Federal Funds Effective Rate. Administrative Agent is hereby authorized to charge the
account of Borrower maintained with JPMCB for each payment of principal, interest and fees
as it becomes due hereunder.




     (b) If any Lender shall fail to make any payment required to be made by it pursuant to
Sections 2.2(b), 2.7, 2.16, 2.17, 3.1, 3.5 or 12.8, then the Administrative Agent shall,
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by
the Administrative Agent for the account of such Lender for the benefit of the
Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s
obligations to it under such Section until all such unsatisfied obligations are fully paid,
and/or (ii) hold any such amounts in a segregated account as cash collateral for, and
application to, any future funding obligations of such Lender under any such Section, in the
case of each of clauses (i) and (ii) above, in any order as determined by the Administrative
Agent in its discretion.



     2.14. Default. Notwithstanding the foregoing, during the continuance of a Monetary
Default or an Event of Default, Borrower shall not have the right to request a Eurocurrency
Borrowing, request a Competitive Bid Loan, select a new LIBOR Interest Period for an existing
ratable Eurocurrency Borrowing or convert any Adjusted Base Rate Borrowing to a ratable
Eurocurrency Borrowing. During the continuance of a Monetary Default or an Event of Default, at
the election of the Required Lenders, by notice to Borrower, outstanding Borrowings shall bear
interest at the applicable Default Rates until such Monetary Default or Event of Default ceases to
exist or the Obligations are paid in full.



     2.15. Lending Installations. Each Lender may book its Borrowings 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 Borrower, designate a Lending Installation
through which Borrowings will be made by it and for whose account payments are to be made.



     2.16. Non-Receipt of Funds by Administrative Agent. Unless Borrower or a Lender, as
the case may be, notifies Administrative Agent prior to the date on which it is scheduled to make
payment to Administrative Agent of (i) in the case of a Lender, a Borrowing, or (ii) in the case of
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 in the applicable currency,
Administrative Agent may assume that such payment has been made. 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 Borrower, as the case may be, has not in fact
made such payment to Administrative Agent, the recipient of such payment shall, promptly after
demand by Administrative Agent, repay to 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 Administrative Agent until the date 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 (as determined by Administrative Agent)



36









 





or the Administrative Agent’s overdraft for Qualified Foreign Global Currencies for such day
or (ii) in the case of payment by Borrower, the interest rate applicable to the relevant Borrowing.




     2.17. Swingline Loans. In addition to the other options available to Borrower
hereunder, the Swingline Lenders’ Domestic Revolving Commitment shall be available for Swingline
Loans subject to the following terms and conditions. Swingline Loans shall be made available for
same day borrowings provided that notice is given in accordance with Section 2.7 hereof.
All Swingline Loans shall bear interest at the Adjusted Base Rate and shall be deemed to be
Adjusted Base Rate Borrowings. Swingline Loans shall be funded by JPMCB in an amount not to exceed
the maximum amount it is required to disburse pursuant to the next sentence. In no event shall a
Swingline Lender be required to fund a Swingline Loan if it would increase the total aggregate
outstanding Loans by such Swingline Lender hereunder plus its LC Exposure to an amount in excess of
its aggregate Domestic Revolving Commitment. Upon request of the Swingline Lenders made to all the
Domestic Revolving Lenders, each Domestic Revolving Lender irrevocably agrees to purchase its
Domestic Percentage of any Swingline Loan made by the Swingline Lenders regardless of whether the
conditions for disbursement are satisfied at the time of such purchase, including the existence of
an Event of Default hereunder provided that such Event of Default did not exist at the time the
Swingline Loan was made and provided further that no Lender shall be required to have its Domestic
Revolving Exposure to be greater than its Domestic Revolving Commitment. Such purchase shall take
place on the date of the request by Swingline Lenders so long as such request is made by 1:00 p.m.
(New York time), otherwise on the Business Day following such request. All requests for purchase
shall be in writing. From and after the date it is so purchased, each such Swingline Loan shall,
to the extent purchased, (i) be treated as a Loan made by the purchasing Lenders and not by the
selling Lender for all purposes under this Agreement and the payment of the purchase price by a
Lender shall be deemed to be the making of a Loan by such Lender and shall constitute outstanding
principal under such Lender’s Note, and (ii) shall no longer be considered a Swingline Loan except
that all interest accruing on or attributable to such Swingline Loan for the period prior to the
date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the
benefit of the Swingline Lenders and all such amounts accruing on or attributable to such Loans for
the period from and after the date of such purchase shall be paid when due by the Borrower to the
Administrative Agent for the benefit of the purchasing Lenders. If prior to purchasing its
Domestic Percentage of a Swingline Loan one of the events described in Section 10.10 shall
have occurred and such event prevents the consummation of the purchase contemplated by preceding
provisions, each Domestic Revolving Lender will purchase an undivided participating interest in the
outstanding Swingline Loan in an amount equal to its Domestic Percentage of such Swingline Loan.
From and after the date of each Lender’s purchase of its participating interest in a Swingline
Loan, if the Swingline Lenders receive any payment on account thereof, the Swingline Lenders will
distribute to such Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s participating
interest was outstanding and funded); provided, however, that in the event that such payment was
received by the Swingline Lenders and is required to be returned to the Borrower, each Lender will
return to the Swingline Lenders any portion thereof previously distributed by the Swingline Lender
to it. If any Domestic Revolving Lender fails to so purchase its Domestic Percentage of any
Swingline Loan, such Lender shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan
shall be outstanding for more than five (5)



37









 





days at a time and Swingline Loans shall not be outstanding for more than a total of ten (10)
days during any month.




     2.18. Competitive Bid Loans.




     (a) Competitive Bid Option. In addition to ratable Borrowings pursuant to
Section 2.7, but subject to the terms and conditions of this Agreement (including,
without limitation the limitation set forth in Section 2.1(a) as to the maximum
Total Domestic Exposure), the Borrower may, as set forth in this Section 2.18, but
only during a Rating Period, request the Revolving Lenders, prior to the Maturity Date, to
make offers to make Competitive Bid Loans to the Borrower. Each Revolving Lender may, but
shall have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section 2.18.
Competitive Bid Loans shall be evidenced by the Competitive Bid Notes.




     (b) Competitive Bid Quote Request. When the Borrower wishes to request offers
to make Competitive Bid Loans under this Section 2.18, it shall transmit to the
Administrative Agent by telecopy a Competitive Bid Quote Request substantially in the form
of Exhibit C-1 hereto so as to be received no later than (i) 11:00 a.m. (New York
time) at least five Business Days prior to the Borrowing Date proposed therein, in the case
of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m. (New York time) at least one
Business Day prior to the Borrowing Date proposed therein, in the case of a request for an
Absolute Rate specifying:




     (i) the proposed Borrowing Date for the proposed Competitive Bid Loan,




     (ii) the requested aggregate principal amount of such Competitive Bid Loan,




     (iii) whether the Competitive Bid Quotes requested are to set forth a
Competitive LIBOR Margin or an Absolute Rate, or both, and




     (iv) the LIBOR Interest Period, if a Competitive LIBOR Margin is requested, or
the Absolute Interest Period, if an Absolute Rate is requested.



The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period
(but not more than five Interest Periods) in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Business Days (or such other number of
days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote
Request. A Competitive Bid Quote Request that does not conform substantially to the form of
Exhibit C-1 hereto shall be rejected, and the Administrative Agent shall promptly notify
the Borrower of such rejection by telecopy.





     (c) Invitation for Competitive Bid Quotes. Promptly and in any event before
the close of business on the same Business Day of receipt of a Competitive Bid Quote Request
that is not rejected pursuant to Section 2.18(b), the Administrative Agent shall
send to each of the Lenders by telecopy an Invitation for Competitive Bid Quotes



38









 






substantially in the form of Exhibit C-2 hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Competitive Bid Quotes offering to make
the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance
with this Section 2.18.




     (d) Submission and Contents of Competitive Bid Quotes.




     (i) Each Lender may, in its sole discretion, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to any
Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply with
the requirements of this Section 2.18(d) and must be submitted to the
Administrative Agent by telex or telecopy at its offices not later than (a) 3:00
p.m. (New York time) at least four Business Days prior to the proposed Borrowing
Date, in the case of a request for a Competitive LIBOR Margin or (b) 10:00 a.m. (New
York time) on the proposed Borrowing Date, in the case of a request for an Absolute
Rate (or, in either case upon reasonable prior notice to the Lenders, such other
time and rate as the Borrower and the Administrative Agent may agree);
provided that Competitive Bid Quotes submitted by JPMCB may only be
submitted if the Administrative Agent or JPMCB notifies the Borrower of the terms of
the Offer or Offers contained therein no later than 30 minutes prior to the latest
time at which the relevant Competitive Bid Quotes must be submitted by the other
Lenders. Subject to the Borrower’s compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall be irrevocable except
with the written consent of the Administrative Agent given on the instructions of
the Borrower.




     (ii) Each Competitive Bid Quote shall be in substantially the form of
Exhibit C-3 hereto and shall in any case specify:




     (i) the proposed Borrowing Date, which shall be the same as that set forth in
the applicable Invitation for Competitive Bid Quotes,




     (ii) the principal amount of the Competitive Bid Loan for which each such offer
is being made, which principal amount (1) may be greater than, less than or equal to
the Commitment of the quoting Lender, (2) must be at least $10,000,000 and an
integral multiple of $1,000,000, and (3) may not exceed the principal amount of
Competitive Bid Loans for which offers are requested,




     (iii) as applicable, the Competitive LIBOR Margin and Absolute Rate offered for
each such Competitive Bid Loan,




     (iv) the minimum amount, if any, of the Competitive Bid Loan which may be
accepted by the Borrower, and




     (v) the identity of the quoting Lender, provided that such Competitive Bid Loan
may be funded by such Lender’s Designated Lender as provided in
Section 2.18(j), regardless of whether that is specified in the Competitive
Bid Quote.



39









 






     (iii) The Administrative Agent shall reject any Competitive Bid Quote that:




     (i) is not substantially in the form of Exhibit C-3 hereto or does not
specify all of the information required by Section 2.18(d)(ii),




     (ii) contains qualifying, conditional or similar language, other than any such
language contained in Exhibit C-3 hereto,




     (iii) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes, or




     (iv) arrives after the time set forth in Section 2.18(d)(i).




If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.18(d)(iii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practical.




     (e) Notice to Borrower. The Administrative Agent shall promptly notify the
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.18(d) and (ii) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by
such Lender with respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is submitted solely to correct
a manifest error in such former Competitive Bid Quote. The Administrative Agent’s notice to
the Borrower shall specify the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related Competitive Bid
Quote Request and the respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.




     (f) Acceptance and Notice by Borrower. Not later than (i) 7:00 p.m. (New York
time) at least four Business Days prior to the proposed Borrowing Date in the case of a
request for a Competitive LIBOR Margin or (ii) 11:00 a.m. (New York time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the Administrative Agent of its
acceptance or rejection of the offers so notified to it pursuant to Section 2.18(e);
provided, however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers. In the case of
acceptance, such notice (a “Competitive Bid Borrowing Notice”) shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The Borrower may
accept any Competitive Bid Quote in whole or in part (subject to the terms of
Section 2.18(d)(iii)); provided that:



40









 






     (i) the aggregate principal amount of all Competitive Bid Loans to be disbursed
on a given Borrowing Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,




     (ii) acceptance of offers may only be made on the basis of ascending
Competitive LIBOR Margins or Absolute Rates, as the case may be, and




     (iii) the Borrower may not accept any offer that is described in
Section 2.18(d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.




     (g) Allocation by Administrative Agent. If offers are made by two or more
Lenders with the same Competitive LIBOR Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which offers are accepted
for the related Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Administrative Agent among such
Lenders as nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate principal amount
of such offers provided, however, that no Lender shall be allocated any Competitive Bid Loan
which is less than the minimum amount which such Lender has indicated that it is willing to
accept. Allocations by the Administrative Agent of the amounts of Competitive Bid Loans
shall be conclusive in the absence of manifest error. The Administrative Agent shall
promptly, but in any event on the same Business Day, notify each Lender of its receipt of a
Competitive Bid Borrowing Notice and the principal amounts of the Competitive Bid Loans
allocated to each participating Lender.




     (h) Administration Fee. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive Bid Quote Request
transmitted by the Borrower to the Administrative Agent pursuant to Section 2.18(b).
Such administration fee shall be payable monthly in arrears on the first Business Day of
each month and on the Maturity Date (or such earlier date on which the Aggregate Commitment
shall terminate or be cancelled) for any period then ending for which such fee, if any,
shall not have been theretofore paid.




     (i) Other Terms. Any Competitive Bid Loan shall not reduce the Commitment of
the Bid Lender making such Competitive Bid Loan (except as the availability of other
Borrowings is reduced by such Competitive
Bid Loan) and each such Bid Lender shall continue to be obligated to fund its full
percentage of all pro rata Borrowings under the Domestic Revolving Facility or Global
Revolving Facility as the case may be. In no event can the aggregate amount of all
Competitive Bid Loans at any time exceed 50% of the then Aggregate Revolving Credit
Commitment. Competitive Bid Loans may not be continued and, if not repaid at the end of the
Interest Period applicable thereto, shall (subject to the conditions set forth in this
Agreement) be replaced by new Competitive Bid Loans made in accordance with this
Section 2.18 or by ratable Borrowings in accordance with Section 2.7.



41









 






     (j) Designated Lenders. A Lender may designate its Designated Lender to fund a
Competitive Bid Loan on its behalf as described in Section 2.18(d)(ii)(e). Any
Designated Lender which funds a Competitive Bid Loan shall on and after the time of such
funding become the obligee under such Competitive Bid Loan and be entitled to receive
payment thereof when due. No Lender shall be relieved of its obligation to fund a
Competitive Bid Loan, and no Designated Lender shall assume such obligation, prior to the
time such Competitive Bid Loan is funded.



     2.19. Voluntary Reduction of Aggregate Commitment Amount. Upon at least five (5) days
prior irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent, Borrower shall have the right to terminate the Revolving Commitments of any
Class in their entirety or, from time to time, to reduce the amount of the Revolving Commitments of
any Class provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any payments of Borrowings made on the effective date thereof, the
Total Domestic Exposure plus Competitive Bid Loans then outstanding would exceed the remaining
aggregate Domestic Revolving Commitments or the Total Global Exposure to exceed the remaining
aggregate Global Revolving Commitments, subject to the provisions of the following grammatical
paragraph. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple
thereof and shall reduce permanently the Domestic Revolving Commitments or Global Revolving
Commitments. Any such reduction shall reduce the Revolving Commitments of all of the Lenders
ratably in proportion to their respective Revolving Commitments for that Class. Unless otherwise
agreed by the Swingline Lender, any reduction in the Domestic Revolving Commitments shall reduce
the maximum amount of Swingline Borrowings permitted hereunder by the same proportion. The
Administrative Agent shall promptly forward to the Lenders any notice of termination or reduction
of the Revolving Commitments for any Class.



     2.20. Reserved.



     2.21. Application of Moneys Received. Subject to Section 2.13(b) hereof, 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:




     (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 any of the Lenders in
accordance with Section 4.1;




     (iii) first to the payment of any fee due pursuant to Section 3.8(b) in
connection with the issuance of a Facility Letter of Credit to the Issuing Bank
until such fee is paid in full, then next to the payment of the Facility Fee and
Facility Letter of Credit Fee to the Lenders, if then due, in that order on a pro
rata basis in accordance with the respective amounts of such fees due to the Lenders
and then finally to the payment of all fees then due to the Administrative Agent;



42









 






     (iv) to payment of the full amount of interest and principal on the Swingline
Loans;




     (v) first to interest until paid in full and then to principal for all Lenders
(i) as allocated by the Borrower (unless an Event of Default exists) among the
Facilities and between Competitive Bid Loans and ratable Borrowings (the amount
allocated to ratable Borrowings under either of the Facilities to be distributed in
accordance with the applicable pro rata shares of the outstanding amounts of the
Lenders for the applicable Facility) or (ii) if an Event of Default exists, in
accordance with the respective Funded Percentages of the Lenders until principal is
paid in full, each Lender’s share of such payment to be allocated pro rata among the
outstanding Classes and Types of Loans owed to such Lender and then to the Letter of
Credit Collateral Account until the full amount of LC Exposures is on deposit
therein; and




     (vi) any other sums due to the Administrative Agent or any Lender under any of
the Loan Documents.



     2.22. Special Provisions Regarding Foreign Currency Loans.




     (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of
any action) (i) all then outstanding Eurocurrency Borrowings denominated in a currency other
than Dollars shall be automatically converted into Adjusted Base Rate Borrowings denominated
in Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of
the applicable Eurocurrency Borrowings on the date such Sharing Event first occurred, which
Loans denominated in Dollars (1) shall thereafter continue to be deemed to be Adjusted Base
Rate Borrowings and (2) unless the Sharing Event resulted solely from a termination of the
Revolving Commitments, shall be immediately due and payable on the date such Sharing Event
has occurred) and (ii) unless the Sharing Event resulted solely from a termination of the
Commitments, all accrued and unpaid interest and other amounts owing with respect to such
Loans shall be immediately due and payable in Dollars, using the Dollar Equivalent of such
accrued and unpaid interest and other amounts.




     (b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic
conversion pursuant to Section 2.22(a), each Revolving Lender shall (and hereby
unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars)
undivided participating interests in all such Loans outstanding so that each Revolving
Lender shall have a share of such outstanding Loans equal to its pro rata share of the
aggregate Domestic Revolving Commitments and aggregate Global Revolving Commitments
(provided that if such purchase of a participating interest would increase the Lender’s
Revolving Exposure to an amount greater than its Revolving Commitment then the amount of the
participation it would be required to purchase would be reduced by such excess amount).
Upon any such occurrence, the Administrative Agent shall notify each Revolving Lender and
shall specify the amount of Dollars required from such Revolving Lender in order to effect
the purchases and sales by the various Revolving Lenders of participating interests in the
amounts required above (together with accrued



43









 






interest with respect to the period for the last interest payment date through the date
of the Sharing Event plus any additional amounts payable by the Borrower pursuant to this
Section in respect of such accrued but unpaid interest); provided, in the event that a
Sharing Event shall have occurred, each Revolving Lender shall be deemed to have purchased,
automatically and without request, such participating interests. Promptly upon receipt of
such request, each Revolving Lender shall deliver to the Administrative Agent (in
immediately available funds in Dollars) the net amounts as specified by the Administrative
Agent. The Administrative Agent shall promptly deliver the amounts so received to the
various Revolving Lenders in such amounts as are needed to effect the purchases and sales of
participations as provided above. Promptly following receipt thereof, each Revolving Lender
which has sold participations in any of its Revolving Loans (through the Administrative
Agent) will deliver to each Revolving Lender (through the Administrative Agent) which has so
purchased a participating interest a participation certificate dated the date of receipt of
such funds and in such amount. It is understood that the amount of funds delivered by each
Revolving Lender shall be calculated on a net basis, giving effect to both the sales and
purchases of participations by the various Revolving Lenders as required above.




     (c) Upon the occurrence of a Sharing Event all amounts from time to time accruing with
respect to, and all amounts from time to time payable on account of, any outstanding
Eurocurrency Borrowings initially denominated in a Qualified Foreign Global Currency
(including, without limitation, any interest and other amounts which were accrued but unpaid
on the date of such purchase) shall be payable in Dollars as if such Eurocurrency Borrowing
had originally been made in Dollars.




     (d) If any amount required to be paid by any Revolving Lender pursuant to Section
2.22(b) is not paid to the Administrative Agent within one (1) Business Day following
the date upon which such Revolving Lender receives notice from the Administrative Agent of
the amount of its participations required to be purchased pursuant to Section
2.22(b), such Revolving Lender shall also pay to the Administrative Agent on demand an
amount equal to the product of (i) the amount so required to be paid by such Revolving
Lender for the purchase of its participations multiplied by (ii) the daily average Federal
Funds Effective Rate during the period from and including the date of request for payment to
the date on which such payment is immediately available to the Administrative Agent
multiplied by (iii) a fraction the numerator of which is the number of days that elapsed
during such period and the denominator of which is 360. If any such amount required to be
paid by any Revolving Lender pursuant to Section 2.22(b) is not in fact made
available to the Administrative Agent within three (3) Business Days following the date upon
which such Revolving Lender receives notice from the Administrative Agent as to the amount
of participations required to be purchased by it, the Administrative Agent shall be entitled
to recover from such Revolving Lender on demand, such amount with interest thereon
calculated from such request date at the rate per annum applicable to Adjusted Base Rate
Borrowings. A certificate of the Administrative Agent submitted to any Revolving Lender
with respect to any amounts payable by any Revolving Lender pursuant to this Section shall
be conclusive and binding.



44









 






     (e) Each Revolving Lender’s obligation to purchase participating interests pursuant to
this Section shall be absolute and unconditional and shall not be affected by any
circumstance including, without limitation, (i) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Lender may have against any other Revolving
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default, (iii) any adverse change in the condition (financial or otherwise)
of any Party or any other Person, (iv) any breach of this Agreement by any Party, any
Revolving Lender or any other Person, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.




     (f) Notwithstanding anything to the contrary contained elsewhere in this Agreement,
upon any purchase of participations as required above, each Revolving Lender which has
purchased such participations shall be entitled to receive from the Borrower any increased
costs and indemnities directly from the Borrower to the same extent as if it were the direct
Revolving Lender as opposed to a participant therein. The Borrower acknowledges and agrees
that, upon the occurrence of a Sharing Event and after giving effect to the requirements of
this Section, increased Taxes may be owing by the Borrower pursuant to Section 4.5,
which Taxes shall be paid (to the extent provided in Section 4.5) by the Borrower,
without any claim that the increased Taxes are not payable because same resulted from the
participations effected as otherwise required by this Section.



     2.23. Voluntary Prepayments of Loans.




     (a) The Borrower shall have the right at any time and from time to time to prepay any
of its Borrowings in whole or in part, subject to prior notice in accordance with paragraph
(b) of this Section.




     (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan, the Swingline Lender) by telecopy of any prepayment under clause (a)
above: (i) in the case of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m.,
New York City time three Business Days before the date of prepayment, (ii) in the case of
prepayment of an Adjusted Base Rate Borrowing, not later than 11:00 a.m., New York City time
one Business Day before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 11:00 a.m., New York City time on the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid. Promptly following
receipt of any such notice relating to a Revolving Borrowing or a Term Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial
prepayment pursuant to clause (a) above of any Revolving Borrowing or Term Borrowing shall
be in an amount that would be permitted in the case of an advance of a Revolving Borrowing
or Term Borrower of the same Type as provided in Section 2.11 hereof. Each
prepayment of a Revolving Borrowing or Term Borrower shall be applied ratably to the Loans
included in the applicable prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to



45









 






the extent required by Section 2.12 hereof and by breakage costs to the extent
required by Section 4.4 hereof.



     2.24. Mandatory Prepayments of Term Loans and Pari Passu Debt.




     (a) If (i) the Fixed Charge Coverage Ratio (calculated as set forth in Section
9.7(a) hereof) is less than 1.35 to 1.0 or (ii) the Consolidated Leverage Ratio is
greater than 55%, each as calculated as of the end of the most recent fiscal quarter
occurring prior to a Triggering Transaction, the Borrower shall, within sixty (60) days of
any Triggering Transaction, apply 100% of the Net Proceeds of any such Triggering
Transaction to the permanent repayment of the Term Loan Facility or other Indebtedness
(including Indebtedness that is secured by a Lien) that is pari passu with the Term Loan
Facility (each a “Repayment Obligation”) except as otherwise provided in Section
2.24(b) below. For the avoidance of doubt, during such sixty (60) day period prior to
the application of such proceeds to the Repayment Obligations, the Borrower may apply such
proceeds to the repayment of the Revolving Credit Facility (without a corresponding
permanent reduction of the Aggregate Revolving Credit Commitment); provided that if the
Borrower so applies such proceeds to such repayment of the Revolving Credit Facility, the
Borrower shall reserve a portion of the Revolving Commitments to be available to pay such
Repayment Obligation during such sixty (60) day period. The Borrower may then reborrow
loans under the Revolving Credit Facility to pay such Repayment Obligation so long as it is
otherwise in compliance with the terms and conditions of this Agreement.




     (b) Notwithstanding the existence of a Repayment Obligation (i) the Consolidated
Operating Partnership may use the Net Proceeds of a Triggering Transaction consisting of a
sale or disposition of any Property or other assets to effect a bona fide 1031 exchange,
(ii) the Borrower may use up to fifty percent (50%) of the Net Proceeds of a Triggering
Transaction consisting of an issuance of equity by the Consolidated Operating Partnership to
(x) acquire new Properties unless prohibited by this Agreement or (y) repay a portion of the
outstanding principal balance of any or all of the Term Loan Facility or other Indebtedness
(including Indebtedness that is secured by a Lien) that is pari passu with the Term Loan
Facility (each, a “Voluntary Prepayment”) and (iii) the Consolidated Operating
Partnership may use the Net Proceeds of a Triggering Transaction to either or both (x)
purchase or develop those Properties listed on Schedule 2.24 where it has a
contractual obligation to do so as of the Effective Date, in the amounts listed on
Schedule 2.24 with respect to each such Property or (y) repay to the Internal
Revenue Service all or some portion of the refund issued to a TRS, based upon (1) such TRS’s
2009 Federal Income Tax Return and (2) any audit of such return conducted by the Internal
Revenue Service. If the Borrower makes a Voluntary Prepayment, pursuant to (ii)(y) above,
then the Borrower shall be entitled to deduct the amount of any such Voluntary Prepayment
from the monies that Borrower is required to pay, at any time in the future, in order to
satisfy a Repayment Obligation. The Borrower shall provide prompt written notice to the
Administrative Agent of any Voluntary Prepayment and any application of a Voluntary
Prepayment to satisfy a Repayment Obligation.




46












 






     (c) The Borrower shall comply with the following covenants with respect to any
Triggering Transaction:




     (i) the Borrower shall provide prompt written notice to the Administrative
Agent of (A) the occurrence of a Triggering Transaction, the Net Proceeds thereof
and the expected use of such proceeds and (B) the application of the proceeds of a
Triggering Transaction to a Repayment Obligation;




     (ii) in each covenant compliance certificate under Section 5.2 hereof,
the Borrower shall certify as to compliance with the foregoing mandatory prepayment
requirements; and




     (iii) in each Borrowing Notice for a Loan under the Revolving Credit Facility,
the Borrower shall certify (A) whether any of such Loan proceeds will be applied to
a Repayment Obligation and (B) that the Borrower is in compliance with the mandatory
prepayment requirements set forth in this Section 2.24.



ARTICLE III.




THE LETTER OF CREDIT SUBFACILITY



     3.1. Obligation to Issue. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of the Borrower and the General Partner herein
set forth, the Issuing Bank hereby agrees to issue for the account of Borrower, one or more
Facility Letters of Credit in accordance with this Article III, from time to time during
the period commencing on the Agreement Execution Date and ending on a date one Business Day prior
to the Maturity Date. The parties acknowledge that there are certain Facility Letters of Credit
that were issued under the Existing Credit Agreement which Borrower has requested remain
outstanding under this Agreement. Accordingly, from and after the date of the first Borrowing
hereunder, the Facility Letters of Credit identified in Schedule 3.1 shall be deemed issued
pursuant to the terms of this Agreement and shall be subject to all of the terms and conditions
contained herein as if such Facility Letters of Credit were issued hereunder.



     3.2. Types and Amounts. The Issuing Bank shall not have any obligation to:




     (i) issue any Facility Letter of Credit if the aggregate maximum amount then
available for drawing under Letters of Credit issued by such Issuing Bank, after
giving effect to the Facility Letter of Credit requested hereunder, shall exceed any
limit imposed by law or regulation upon such Issuing Bank;




     (ii) issue any Facility Letter of Credit if, after giving effect thereto,
either (1) the Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans would exceed the aggregate Domestic Revolving Commitments, or
(2) the LC Exposure would exceed $50,000,000;




     (iii) issue any Alternative Currency Letter of Credit if it has determined that
it is unlawful to fund obligations in the Alternative Currency in which it is
denominated;



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     (iv) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provision to extend such date, to a date which is
after the Business Day immediately preceding the Maturity Date; or




     (v) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provisions to extend such date, to a date which is
more than twelve (12) months after the date of its issuance.



     3.3. Conditions. In addition to being subject to the satisfaction of the conditions
contained in Article V hereof, the obligation of the Issuing Bank to issue any Facility
Letter of Credit is subject to the satisfaction in full of the following conditions:




     (i) the Borrower shall have delivered to the Issuing Bank at such times and in
such manner as the Issuing Bank may reasonably prescribe such documents and
materials as may be reasonably required pursuant to the terms of the proposed
Facility Letter of Credit (it being understood that if any inconsistency exists
between such documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably satisfactory
to the Issuing Bank as to form and content;




     (ii) as of the date of issuance, no order, judgment or decree of any court,
arbitrator or governmental authority shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing the requested Facility Letter of Credit and
no law, rule or regulation applicable to the Issuing Bank and no request or
directive (whether or not having the force of law) from any governmental authority
with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing
Bank refrain from the issuance of Letters of Credit generally or the issuance of the
requested Facility Letter of Credit in particular; and




     (iii) there shall not exist any Default or Event of Default.



     3.4. Procedure for Issuance of Facility Letters of Credit.




     (a) Borrower shall give the Issuing Bank and the Administrative Agent at least two (2)
Business Days’ prior written notice of any requested issuance of a Facility Letter of Credit
under this Agreement (a “Letter of Credit Request”), a copy of which shall be sent
immediately to all Lenders (except that, in lieu of such written notice, the Borrower may
give the Issuing Bank and the Administrative Agent telephonic notice of such request if
confirmed in writing by delivery to the Issuing Bank and the Administrative Agent (i)
immediately (A) of a telecopy of the written notice required hereunder which has been signed
by an authorized officer, or (B) of a telex containing all information required to be
contained in such written notice and (ii) promptly (but in no event later than the requested
date of issuance) of the written notice required hereunder containing the original signature
of an authorized officer, the substance of which notice
shall be promptly forwarded to all Lenders); such notice shall be irrevocable and shall
specify:



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     (i) whether the requested Facility Letter of Credit is, in Borrower’s belief, a
Financial Letter of Credit or a Performance Letter of Credit;




     (ii) the stated amount of the Facility Letter of Credit requested (which stated
amount shall not be less than $50,000);




     (iii) the effective date (which day shall be a Business Day) of issuance of
such requested Facility Letter of Credit (the “Issuance Date”);




     (iv) the date on which such requested Facility Letter of Credit is to expire;




     (v) the purpose for which such Facility Letter of Credit is to be issued;




     (vi) the Person for whose benefit the requested Facility Letter of Credit is to
be issued;




     (vii) any special language required to be included in the Facility Letter of
Credit;




     (viii) whether an Alternative Currency Letter of Credit is being requested and,
if so, in which Alternative Currency, provided that if no Alternative Currency is
requested, the Facility Letter of Credit shall be issued in Dollars.




At the time such request is made, the Borrower shall also provide the Administrative Agent
and the Issuing Bank with a copy of the form of the Facility Letter of Credit that the
Borrower is requesting be issued. Such notice, to be effective, must be received by such
Issuing Bank and the Administrative Agent not later than 3:00 p.m. (New York time) on the
last Business Day on which notice can be given under this Section 3.4(a). Following
receipt of such notice and prior to the issuance of the requested Facility Letter of Credit,
the Administrative Agent shall notify the Borrower, and the applicable Issuing Bank of the
amount of the Total Domestic Exposure after giving effect to (i) the issuance of such
Facility Letter of Credit, (ii) the issuance or expiration of any other Facility Letter of
Credit that is to be issued or will expire prior to the requested date of issuance of such
Facility Letter of Credit and (iii) the borrowing or repayment of any Domestic Revolving
Loans or Swingline Loans that (based upon notices delivered to the Administrative Agent by
the Borrower) are to be borrowed or repaid prior to the requested date of issuance of such
Facility Letter of Credit. A Facility Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Facility Letter
of Credit the Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$50,000,000, and (ii) the Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans shall not exceed the aggregate Domestic Revolving Commitments. A
Facility Letter of Credit shall not be issued,
extended or renewed if the Issuing Bank has received written notice from the Administrative
Agent at least one (1) Business Day prior to the date of such requested issuance, extension
or renewal, that one or more applicable conditions contained in



49









 




     Section 5.2 shall
not be satisfied. Administrative Agent shall promptly give a copy of the Letter of Credit
Request to the other Lenders.





     (b) Subject to the terms and conditions of this Article III and provided that
the applicable conditions set forth in Article V hereof have been satisfied, the
Issuing Bank shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of the
Borrower in accordance with the Letter of Credit Request and the Issuing Bank’s usual and
customary business practices unless the Issuing Bank has actually received (i) written
notice from the Borrower specifically revoking the Letter of Credit Request with respect to
such Facility Letter of Credit, (ii) written notice from a Lender, which complies with the
provisions of Section 3.6(a), or (iii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit would
violate Section 3.2.




     (c) The Issuing Bank shall give the Administrative Agent (who shall promptly notify
Lenders) and the Borrower written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Facility Letter of Credit (the “Issuance
Notice”), which shall indicate the Issuing Bank’s reasonable determination as to whether
such Facility Letter of Credit is a Financial Letter of Credit or a Performance Letter of
Credit, which determination shall be conclusive absent manifest error.




     (d) The Issuing Bank shall not extend or amend any Facility Letter of Credit unless the
requirements of this Section 3.4 are met as though a new Facility Letter of Credit
was being requested and issued.



     3.5. Reimbursement Obligations; Duties of Issuing Bank.




     (a) If the applicable Issuing Bank shall make any LC Disbursement in respect of a
Facility Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to
the Administrative Agent an amount equal to such LC Disbursement in Dollars, or (subject to
the two immediately succeeding sentences) the applicable Alternative Currency, not later
than 12:00 noon, New York City time, as applicable, on the date that such LC Disbursement is
made, if such Borrower shall have received notice of such LC Disbursement prior to 10:00
a.m., New York City time, as applicable, on such date, or, if such notice has not been
received by such Borrower prior to such time on such date, then not later than 12:00 noon,
New York time, as applicable, on the Business Day immediately following the day that such
Borrower receives such notice; provided that, in the case of any LC Disbursement made in
Dollars, the Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.4 or 2.7 that such payment be financed in
Dollars with a Adjusted Base Rate Borrowing under the Domestic Revolving Facility or
Swingline Loan in an equivalent amount and, to the extent so financed, such Borrower’s
obligation to make such payment shall be discharged and replaced by the resulting Adjusted
Base Rate Borrowing or Swingline Loan. If the Borrower’s reimbursement of, or obligation to
reimburse, any amounts in any Alternative Currency would subject the Administrative Agent,
the applicable Issuing Bank or any
Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if
such reimbursement were made or required to be made in Dollars, such Borrower shall, at its
option, either (x) pay the amount of any such tax requested by the Administrative



50









 






Agent, the
relevant Issuing Bank or Lender or (y) reimburse each LC Disbursement made in such
Alternative Currency in Dollars, in an amount equal to the Dollar Equivalent, calculated
using the applicable Exchange Rate on the date such LC Disbursement is made, of such LC
Disbursement. If the Borrower fails to make such payment when due, then (i) if such payment
relates to an Alternative Currency Letter of Credit, automatically and with no further
action required, such Borrower’s obligation to reimburse the applicable LC Disbursement
shall be permanently converted into an obligation to reimburse the Dollar Equivalent,
calculated using the Exchange Rates on the date when such payment was due, of such LC
Disbursement and (ii) the Administrative Agent shall promptly notify the applicable Issuing
Bank and each other Domestic Revolving Lender of the applicable LC Disbursement, the Dollar
Equivalent thereof (if such LC Disbursement relates to an Alternative Currency Letter of
Credit), the payment then due from such Borrower in respect thereof and such Lender’s
Domestic Percentage thereof. Promptly following receipt of such notice, each Domestic
Revolving Lender shall pay to the Administrative Agent in Dollars its Domestic Percentage of
the payment then due from the Borrower (determined as provided in clause (i) above, if such
payment relates to an Alternative Currency Letter of Credit), in the same manner as provided
in Section 2.8 with respect to Loans made by such Lender (and Section 2.11
shall apply, mutatis mutandis, to the payment obligations of the Domestic Revolving
Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank in
Dollars the amounts so received by it from the Domestic Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment from any Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the applicable
Issuing Bank or, to the extent that Domestic Revolving Lenders have made payments pursuant
to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank
as their interests may appear. Any payment made by a Domestic Revolving Lender pursuant to
this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding
of Adjusted Base Rate Domestic Revolving Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve any Borrower of its obligation to
reimburse such LC Disbursement.




     (b) If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made (in the
local time where the LC Disbursement is made regardless of when such reimbursement is due
under Section 3.5(a)), the unpaid amount thereof shall bear interest, for each day
from and including the date such LC Disbursement is made to, but excluding, the date that
such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to
Adjusted Base Rate Borrowings; provided that, if such Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (a) of this Section, then Section 2.7
shall apply; provided further that, in the case of an LC Disbursement made under an
Alternative Currency Letter of Credit, the amount of interest due with respect thereto shall
(i) in the case of any LC Disbursement that is reimbursed on or before the Business Day
immediately succeeding such LC Disbursement, (A) be payable in the applicable Alternative
Currency and (B) if not
reimbursed on the date of such LC Disbursement, bear interest at a rate equal to the
rate reasonably determined by the applicable Issuing Bank to be the cost to such Issuing
Bank of funding such LC Disbursement plus the Applicable Margin applicable to Eurocurrency



51









 






Revolving Loans at such time and (ii) in the case of any LC Disbursement that is reimbursed
after the Business Day immediately succeeding such LC Disbursement (A) be payable in
Dollars, (B) accrue on the Dollar Equivalent, calculated using the Exchange Rates on the
date such LC Disbursement was made, of such LC Disbursement and (C) bear interest at the
rate per annum then applicable to Adjusted Base Rate Revolving Loans, subject to Section
2.7. Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of payment by
any Domestic Revolving Lender pursuant to Section 3.5 to reimburse such Issuing Bank
shall be for the account of such Lender to the extent of such payment



     3.6. Participation.




     (a) Immediately upon issuance by the Issuing Bank of any Facility Letter of Credit in
accordance with the procedures set forth in Section 3.4, each Domestic Revolving
Lender shall be deemed to have irrevocably and unconditionally purchased and received from
the Issuing Bank, without recourse, representation or warranty, an undivided interest and
participation equal to such Lender’s Domestic Percentage in such Facility Letter of Credit
(including, without limitation, all obligations of the Borrower with respect thereto) and
all related rights hereunder and under the Guaranty and other Loan Documents (using the
Dollar Equivalent thereof in the case of any Alternative Currency Letters of Credit);
provided that a Facility Letter of Credit issued by the Issuing Bank shall not be deemed to
be a Facility Letter of Credit for purposes of this Section 3.6 if the Issuing Bank
shall have received written notice from any Lender on or before the Business Day prior to
the date of its issuance of such Facility Letter of Credit that one or more of the
conditions contained in Section 5.2 is not then satisfied, and in the event the
Issuing Bank receives such a notice it shall have no further obligation to issue any
Facility Letter of Credit until such notice is withdrawn by that Lender or the Issuing Bank
receives a notice from the Administrative Agent that such condition has been effectively
waived in accordance with the provisions of this Agreement. Each Domestic Revolving
Lender’s obligation to make further Domestic Revolving Loans to Borrower (other than any
payments such Lender is required to make under subparagraph (b) below) or to purchase an
interest from the Issuing Bank in any subsequent letters of credit issued by the Issuing
Bank on behalf of Borrower shall be reduced by such Lender’s Domestic Percentage of the
undrawn portion of each Facility Letter of Credit outstanding.




     (b) In the event that the Issuing Bank makes any payment under any Facility Letter of
Credit and the Borrower shall not have repaid such amount to the Issuing Bank pursuant to
Section 3.7 hereof, the Issuing Bank shall promptly notify the Administrative Agent,
which shall promptly notify each Domestic Revolving Lender of such failure, and each
Domestic Revolving Lender shall promptly and unconditionally pay to the Administrative Agent
for the account of the Issuing Bank the amount of such Lender’s Domestic Percentage of (i)
each LC Disbursement made by such Issuing Bank in Dollars and (ii) the Dollar Equivalent,
using the Exchange Rates on the date such payment is required, of each LC Disbursement made
by such Issuing Bank in an Alternative
Currency and, in each case, not reimbursed by the Borrower on the date due as provided
in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to
such Borrower for any reason (or, if such reimbursement payment was



52









 






refunded in an
Alternative Currency, the Dollar Equivalent thereof using the Exchange Rates on the date of
such refund). The failure of any Domestic Revolving Lender to make available to the
Administrative Agent for the account of the Issuing Bank its Domestic Percentage of the
unreimbursed amount of any such payment shall not relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent for the account of such Issuing Bank
its Domestic Percentage of the unreimbursed amount of any payment on the date such payment
is to be made, but no Lender shall be responsible for the failure of any other Lender to
make available to the Administrative Agent its Domestic Percentage of the unreimbursed
amount of any payment on the date such payment is to be made.




     (c) Whenever the Issuing Bank receives a payment on account of a Reimbursement
Obligation, including any interest thereon, the Issuing Bank shall promptly pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each Lender which
has funded its participating interest therein, in immediately available funds, an amount
equal to such Lender’s Domestic Percentage thereof.




     (d) Upon the request of the Administrative Agent or any Lender, the Issuing Bank shall
furnish to such Administrative Agent or Lender copies of any Facility Letter of Credit to
which the Issuing Bank is party and such other documentation as may reasonably be requested
by the Administrative Agent or Lender.




     (e) The obligations of a Lender to make payments to the Administrative Agent for the
account of the Issuing Bank with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever other than a failure of any such Issuing Bank to comply with the terms
of this Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this Agreement under
all circumstances.



     3.7. Payment of Reimbursement Obligations.




     (a) The Borrower agrees to pay to the Administrative Agent for the account of the
Issuing Bank the amount of all Borrowings for Reimbursement Obligations, interest and other
amounts payable to the Issuing Bank under or in connection with any Facility Letter of
Credit when due, irrespective of any claim, set-off, defense or other right which the
Borrower may have at any time against any Issuing Bank or any other Person, under all
circumstances, including without limitation any of the following circumstances:




     (i) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;




     (ii) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against a beneficiary named in a Facility Letter of
Credit or any transferee of any Facility Letter of Credit (or any Person for whom
any such transferee may be acting), the Administrative Agent, the Issuing Bank,



53









 






any
Lender, or any other Person, whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);




     (iii) any draft, certificate or any other document presented under the Facility
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in any respect;




     (iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or




     (v) the occurrence of any Default or Event of Default.




     (b) In the event any payment by the Borrower received by the Issuing Bank or the
Administrative Agent with respect to a Facility Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is thereafter set
aside, avoided or recovered from the Administrative Agent or Issuing Bank in connection with
any receivership, liquidation, reorganization or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by the Administrative Agent, contribute such
Lender’s Domestic Percentage of the amount set aside, avoided or recovered together with
interest at the rate required to be paid by the Issuing Bank or the Administrative Agent
upon the amount required to be repaid by the Issuing Bank or the Administrative Agent.



     3.8. Compensation for Facility Letters of Credit.




     (a) The Borrower shall pay to the Administrative Agent, for the ratable account of the
Domestic Revolving Lenders, based upon such Lenders’ respective Domestic Percentages, a per
annum fee (the “Facility Letter of Credit Fee”) with respect to each Facility Letter of
Credit that is equal to (i) the LIBOR Applicable Margin in effect from time to time in the
case of Financial Letters of Credit, and (ii) the LIBOR Applicable Margin from time to time
minus 0.25% in the case of Performance Letters of Credit. The Facility Letter of Credit Fee
relating to any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of any Facility
Letter of Credit and, to the extent any such fees are then due and unpaid, on the Maturity
Date. The Administrative Agent shall promptly remit such Facility Letter of Credit Fees,
when paid, to the other Domestic Revolving Lenders in accordance with their Domestic
Percentages thereof. The Borrower shall not have any liability to any Lender for the
failure of the Administrative Agent to promptly deliver funds to any such Lender and shall
be deemed to have made all such payments on the date the respective payment is made by the
Borrower to the Administrative Agent, provided such payment is received by the time
specified in Section 2.13 hereof. The
Facility Letter of Credit Fee due in connection with a Facility Letter of Credit issued
in an Alternative Currency shall be at the same per annum rate as specified above for
Facility Letters of Credit issued in Dollars but shall be based on a Facility Letter of
Credit amount calculated by multiplying (x) the average daily balance of each Alternative



54









 






Currency Letter of Credit (expressed in the currency in which such Alternative Currency
Letter of Credit is denominated) by (y) the Exchange Rate for each such Alternative Currency
in effect on the last Business Day of such period or by such other reasonable method that
the Administrative Agent deems appropriate.




     (b) The Issuing Bank also shall have the right to receive solely for its own account an
issuance fee of 0.15% of the face amount of each Facility Letter of Credit, payable by the
Borrower on the Issuance Date for each such Facility Letter of Credit. The Issuing Bank
shall also be entitled to receive its reasonable out-of-pocket costs and the Issuing Bank’s
standard charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.



     3.9. Letter of Credit Collateral Account. The Borrower hereby agrees that it will,
until the Maturity Date, maintain a special collateral account (the “Letter of Credit Collateral
Account”) at the Administrative Agent’s office at the address specified pursuant to Article
XV, in the name of the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no interest other than
as set forth in Section 11.1. In addition to the foregoing, the Borrower hereby grants to
the Administrative Agent, for the benefit of the Domestic Revolving Lenders, a security interest in
and to the Letter of Credit Collateral Account and any funds that may hereafter be on deposit in
such account, including income earned thereon. The Lenders acknowledge and agree that the Borrower
has no obligation to fund the Letter of Credit Collateral Account unless and until so required
under Section 11.1 or Section 2.3(b) hereof.



     3.10. Conversion. In the event that the Loans become immediately due and payable on
any date pursuant to Article XI, all amounts (i) that Borrower is at the time or thereafter becomes
required to reimburse or otherwise pay to the Administrative Agent in respect of LC Disbursements
made under any Alternative Currency Letter of Credit (other than amounts in respect of which such
Borrower has deposited cash collateral pursuant to this Agreement, if such cash collateral was
deposited in the applicable Alternative Currency to the extent so deposited or applied), (ii) that
the Domestic Revolving Lenders are at the time or thereafter become required to pay to the
Administrative Agent and the Administrative Agent is at the time or thereafter becomes required to
distribute to the applicable Issuing Bank pursuant to Section 3.5 in respect of
unreimbursed LC Disbursements made under any Alternative Currency Letter of Credit and (iii) of
each Domestic Revolving Lender’s participation in any Alternative Currency Letter of Credit under
which an LC Disbursement has been made shall, automatically and with no further action required, be
converted into the Dollar Equivalent, calculated using the Exchange Rates on such date (or in the
case of any LC Disbursement made after such date, on the date such LC Disbursement is made), of
such amounts. On and after such conversion, all amounts accruing and owed to the Administrative
Agent, the applicable Issuing Bank or any Lender in respect of the Obligations described in this
paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.



55









 





ARTICLE IV.




CHANGE IN CIRCUMSTANCES



     4.1. Yield Protection. If the adoption of or change in any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, or the compliance of
any Lender therewith, including, without limitation, the adoption
after the Agreement Execution Date of any rule, regulation, policy,
guideline or directive promulgated under the Dodd-Frank Wall Street
Reform and Consumer Protection Act
(collectively, “Change in Law”):




     (i) subjects any Lender or any applicable Lending Installation to any tax,
duty, charge or withholding on or from payments due from Borrower (excluding federal
and state taxation of the overall net income of any Lender or applicable Lending
Installation), or changes the basis of such taxation of payments to any Lender in
respect of its Borrowings, its interest in the Facility Letters of Credit or other
amounts due it hereunder, or




     (ii) 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 Eurocurrency Borrowings), or




     (iii) imposes any other condition, and the result is to increase the cost of
any Lender or any applicable Lending Installation of making, funding or maintaining
loans or reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the amount of
loans held, Letters of Credit issued or participated in or interest received by it,
by an amount deemed material by such Lender,


then, within fifteen (15) days of demand by such Lender, Borrower shall pay such Lender that
portion of such increased expense incurred or reduction in an amount received which such Lender
determines is attributable to making, funding and maintaining its Borrowings and its Commitment.




     4.2. Changes in Capital Adequacy Regulations. If a Lender determines the amount of
capital required or expected to be maintained by such Lender, any Lending Installation of such
Lender or any corporate entity controlling such Lender is increased as a result of a Change (as
defined below), then, within fifteen (15) days of demand by such Lender, 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 determines is attributable to this Agreement, its
Borrowings, its interest in the Facility Letters of Credit, or its obligation to make Borrowings
hereunder or participate in or issue Facility Letters of Credit 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 defined below) 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



56









 




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 July 1988 report of the Basle 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. Without in any way affecting the Borrower’s obligation to pay compensation actually
claimed by a Lender under this Section 4.2, the Borrower shall have the right to replace
any Lender which has demanded such compensation provided that Borrower notifies such Lender that it
has elected to replace such Lender and notifies such Lender and the Administrative Agent of the
identity of the proposed replacement Lender not more than six (6) months after the date of such
Lender’s most recent demand for compensation under this Section 4.2, and further provided
that such replacement is otherwise in accordance with Section 4.7. The Lender being
replaced shall assign its Revolving Commitment and its rights and obligations under this Facility
to the replacement Lender in accordance with the requirements of Section 13.3 hereof and
the replacement Lender shall assume such Domestic Percentage of the total Domestic Revolving
Commitment, the Global Percentage of the total Global Revolving Percentage and the related
obligations under this Facility prior to the Maturity Date to be extended, all pursuant to an
assignment agreement substantially in the form of Exhibit I hereto. The purchase by the
replacement Lender shall be at par (plus all accrued and unpaid interest and any other sums owed to
such Lender being replaced hereunder) which shall be paid to the Lender being replaced upon the
execution and delivery of the assignment. The Lender being replaced shall continue to be entitled
to the benefits of Sections 4.1, 4.2, 4.4, 4.5 and 14.6 for
events recurring prior to assignment to the replacement Lender.




     4.3. Availability of Eurocurrency Borrowings. If any Lender determines that
maintenance of any of its Eurocurrency Borrowings at a suitable Lending Installation would violate
any applicable law, rule, regulation or directive of any Governmental Authority having
jurisdiction, the Administrative Agent shall suspend by written notice to Borrower (with a copy
thereof being delivered contemporaneously to Lenders) the availability of Eurocurrency Borrowings
and require any Eurocurrency Borrowings to be repaid; or if the Required Lenders determine that (i)
deposits of a type or maturity appropriate to match fund Eurocurrency Borrowings are not available,
the Administrative Agent shall suspend by written notice to Borrower (with a copy thereof being
delivered contemporaneously to Lenders) the availability of Eurocurrency Borrowings with respect to
any Eurocurrency Borrowings made after the date of any such determination, or (ii) an interest rate
applicable to a Eurocurrency Borrowing does not accurately reflect the cost of making a
Eurocurrency Borrowing, and, if for any reason whatsoever the provisions of Section 4.1 are
inapplicable, the Administrative Agent shall suspend by written notice to Borrower (with a copy
thereof being delivered contemporaneously to Lenders) the availability of Eurocurrency Borrowings
with respect to any Eurocurrency Borrowings made after the date of any such determination.



     4.4. Funding Indemnification. If any payment of a ratable Eurocurrency Borrowing or a
Competitive Bid Loan 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
Eurocurrency



57









 




Borrowing or a Competitive Bid Loan is not made, continued or converted on the
date specified by Borrower for any reason other than default by one or more of the Lenders,
Borrower will indemnify each Lender for any loss or cost incurred by such Lender resulting
therefrom, including, without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the ratable Eurocurrency Borrowing or Competitive Bid Loan, as the
case may be.




     4.5. Taxes.




     (i) All payments by the Borrower to or for the account of any Lender or the
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 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 of 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



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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.




     (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; provided that, should a
Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to deliver a form
required under clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to recover
such Taxes.




     (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.




     (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,



59









 






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.




     (viii) Each of the Lenders represents that as of the Agreement Execution Date
it is not aware of any facts that would give rise to a claim for additional payments
under this Section 4.5.



     4.6. Lender Statements; Survival of Indemnity. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to its Eurocurrency
Borrowings to reduce any liability of Borrower to such Lender under Sections 4.1,
4.2 and 4.5 or to avoid the unavailability of a Eurocurrency Borrowing, so long as
such designation is not disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender as to the amount due, if any, under Sections 4.1, 4.2,
4.4 and 4.5 hereof. 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 Borrower in the absence of manifest error. The amount due in such statement shall not
include amounts due under Section 4.5 that are either attributable to facts known to the
Lender as of the Agreement Execution Date or that relate to a time period more than ninety (90)
days prior to the giving of such written statement. Determination of amounts payable under such
Sections in connection with a Eurocurrency Borrowing shall be calculated as though each Lender
funded its Eurocurrency Borrowing through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Adjusted LIBOR Rate applicable
to such Borrowing, whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement shall be payable on demand after receipt by Borrower of
the written statement. The obligations of Borrower under Sections 4.1, 4.2,
4.4 and 4.5 hereof 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 Eurocurrency Borrowings at a suitable Lending Installation pursuant to Section 4.6,
with a replacement bank or other financial institution or (c) becomes a Defaulting Lender; provided
that (i) such replacement does not conflict with any applicable legal or regulatory requirements
affecting the remaining Lenders, (ii) no Event of Default or (after notice thereof to Borrower) no
Default shall have occurred and be continuing at the time of such replacement, (iii) the
replacement bank or institution shall purchase at par all Loans and the Borrower or the replacement
bank or institution shall repay 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 Eurocurrency Borrowing 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



60









 




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.




     4.8. Change in Law. Notwithstanding any other provision of this Agreement, if, after
the date hereof, (a) any Change in Law shall make it unlawful for any Issuing Bank to issue
Facility Letters of Credit denominated in an Alternative Currency, or any Global Revolving Lender
to make Global Revolving Loans denominated in a Qualified Foreign Global Currency, or (b) there
shall have occurred any change in national or international financial, political or economic
conditions (including the imposition of or any change in exchange controls) or currency exchange
rates that would cause material restrictions on any Issuing Bank’s ability to issue Facility
Letters of Credit denominated in such Alternative Currency for the account of a Borrower, or any
Global Revolving Lender to make Global Revolving Loans denominated in a Qualified Foreign Global
Currency, then by prompt written notice thereof to the Borrower and to the Administrative Agent
(which notice shall be withdrawn whenever such circumstances no longer exist), (i) such Issuing
Bank may declare that Facility Letters of Credit will not thereafter be issued by it in the
affected Alternative Currency or Alternative Currencies, whereupon the affected Alternative
Currency or Alternative Currencies shall be deemed (for the duration of such declaration) not to
constitute an Alternative Currency for purposes of the issuance of Facility Letters of Credit by
such Issuing Bank, (ii) such Global Revolving Lender may declare that Global Revolving Loans will
not thereafter be made by it in the affected Qualified Foreign Global Currency or Qualified Foreign
Global Currencies, whereupon the affected Qualified Global Currency or Qualified Foreign Global
Currencies shall be deemed (for the duration of such declaration) not to constitute a Qualified
Foreign Global Currency for purposes of the making of Global Revolving Loans by such Global
Revolving Lender.



ARTICLE V.




CONDITIONS PRECEDENT



     5.1. Conditions Precedent to Closing. The Lenders shall not be required to make the
initial Borrowing hereunder, nor shall the Issuing Bank be required to issue the initial Facility
Letter of Credit hereunder, unless (i) the Borrower shall have paid all fees then due and payable
to the Lenders, J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and the Administrative
Agent hereunder, including reasonable legal fees and out-of-pocket expenses, (ii) all of the
conditions set forth in Section 5.2 are satisfied, and (iii) the Borrower shall have
furnished to the Administrative Agent, in form and substance satisfactory to the Lenders and their
counsel and with sufficient copies for the Lenders, the following:




     (a) Certificates of Limited Partnership/Incorporation. A copy of the
Certificate of Limited Partnership for the Borrower and a copy of the articles of



61









 






incorporation of General Partner, each certified by the appropriate Secretary of State
or equivalent state official.




     (b) Agreements of Limited Partnership/Bylaws. A copy of the Agreement of
Limited Partnership for the Borrower and a copy of the bylaws of the General Partner,
including all amendments thereto, each certified by the Secretary or an Assistant Secretary
of the General Partner as being in full force and effect on the Agreement Execution Date.




     (c) Good Standing Certificates. A certified copy of a certificate from the
Secretary of State or equivalent state official of the states where the Borrower and General
Partner are organized, dated as of the most recent practicable date, showing the good
standing or partnership qualification (if issued) of (i) Borrower, and (ii) General Partner.




     (d) Foreign Qualification Certificates. A certified copy of a certificate from
the Secretary of State or equivalent state official of the state where the Borrower and
General Partner maintain their principal place of business, dated as of the most recent
practicable date, showing the qualification to transact business in such state as a foreign
limited partnership or foreign corporation, as the case may be, for (i) Borrower, and (ii)
General Partner.




     (e) Resolutions. A copy of a resolution or resolutions adopted by the Board of
Directors of the General Partner, certified by the Secretary or an Assistant Secretary of
the General Partner as being in full force and effect on the Agreement Execution Date,
authorizing the Borrowings provided for herein and the execution, delivery and performance
of the Loan Documents by the General Partner to be executed and delivered by it hereunder on
behalf of itself and Borrower.




     (f) Incumbency Certificate. A certificate, signed by the Secretary or an
Assistant Secretary of the General Partner and dated the Agreement Execution Date, as to the
incumbency, and containing the specimen signature or signatures, of the Persons authorized
to execute and deliver the Loan Documents to be executed and delivered by it and Borrower
hereunder.




     (g) Loan Documents. Originals of the Loan Documents (in such quantities as the
Lenders may reasonably request), duly executed by authorized officers of the appropriate
entity, including this Agreement duly executed by authorized officers of each Lender under
the Existing Credit Agreement.




     (h) Opinion of Borrower’s Counsel. A written opinion, dated the Agreement
Execution Date, from outside counsel for the Borrower which counsel is reasonably
satisfactory to Administrative Agent, substantially in the form attached hereto as
Exhibit E.




     (i) Opinion of General Partner’s Counsel. A written opinion, dated the
Agreement Execution Date, from outside counsel for the General Partner which counsel



62









 






is reasonably satisfactory to Administrative Agent, substantially in the form attached
hereto as Exhibit F.




     (j) Prior Facility. The Lenders acknowledge that the Borrower has properly
terminated the Existing Credit Agreement effective as of the Agreement Execution Date and
shall immediately pay all outstanding obligations thereunder with the proceeds of the
initial Borrowing hereunder. The Borrower shall have repaid Loans borrowed under the
Existing Credit Agreement to reduce the outstanding Loans to $400,000,000.




     (k) Financial and Related Information. The following information:




     (i) The most recent financial statements of the Borrower and General Partner
and a certificate from a Qualified Officer of the Borrower that no change in the
Borrower’s financial condition that would have a Material Adverse Effect has
occurred since June 30, 2010;




     (ii) Written money transfer instructions, in substantially the form of
Exhibit G hereto, addressed to the Administrative Agent and signed by a
Qualified Officer, together with such other related money transfer authorizations as
the Administrative Agent may have reasonably requested; and




     (iii) Operating statements for the Unencumbered Assets and other evidence of
income and expenses to assist the Administrative Agent in determining Borrower’s
compliance with the covenants set forth in Article IX herein.




     (l) Closing Certificate. A certificate, signed by an officer of the Borrower,
stating that on the Agreement Execution Date no Default or Event of Default has occurred and
is continuing and that all representations and warranties of the Borrower contained herein
are true and correct as of the Agreement Execution Date as and to the extent set forth
herein.




     (m) Compliance Certificate. A certificate substantially in the form of
Exhibit H, signed by an officer of the Borrower certifying as to compliance with the
financial covenants set forth in Section 9.7 on a pro-forma basis on the Agreement
Execution Date using the financial results as of the last day of the most recently completed
calendar quarter and giving effect to the incurrence of the Loans, which certificate shall
include calculations in reasonable detail demonstrating such compliance.




     (n) Other Evidence as any Lender May Require. Such other evidence as any
Lender may reasonably request to establish the consummation of the transactions contemplated
hereby, the taking of all necessary actions in any proceedings in connection herewith and
compliance with the conditions set forth in this Agreement.



     When all such conditions have been fulfilled (or, in the Lenders’ sole discretion, waived by
Lenders), the Administrative Agent shall confirm in writing to Borrower that the initial Borrowing
is then available to Borrower hereunder.



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     5.2. Conditions Precedent to Subsequent Borrowings. Borrowings after the initial
Borrowing shall be made from time to time as requested by Borrower, and the obligation of each
Lender to make any Borrowing (including Swingline Loans and Competitive Bid Loans) and the
obligation of the Issuing Bank to issue, renew or extend a Facility Letter of Credit is subject to
the following terms and conditions:




     (a) prior to and after giving effect to each such Borrowing or Facility Letter of
Credit issuance, renewal or extension, no Default or Event of Default shall have occurred
and be continuing under this Agreement or any of the Loan Documents, and Borrower shall
deliver a certificate of Borrower to such effect; and




     (b) The representations and warranties contained in Article VI and VII
are true and correct as of such borrowing date, Issuance Date (or date of renewal or
extension of a Facility Letter of Credit), as and to the extent set forth therein, except to
the extent any such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall be true and correct on and as of
such earlier date.



     Subject to the last grammatical paragraphs of Article VI and VII hereof, each
Borrowing Notice and Letter of Credit Request shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 5.2(a) and (b) have been
satisfied.



ARTICLE VI.




REPRESENTATIONS AND WARRANTIES



     Borrower hereby represents and warrants to the Lenders that:



     6.1. Existence. Borrower is a limited partnership duly organized and existing under
the laws of the State of Delaware, with its principal place of business in the State of Illinois,
and is duly qualified as a foreign limited partnership, properly licensed (if required), in good
standing and has all requisite authority to conduct its business in each jurisdiction in which it
owns Properties and, except where the failure to be so qualified or to obtain such authority would
not have a Material Adverse Effect, in each other jurisdiction in which its business is conducted.
Each of its 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 it owns Property, and except where the failure to be so qualified or to
obtain such authority would not have a Material Adverse Effect, in each other jurisdiction in which
it conducts business.



     6.2. Corporate/Partnership Powers. The execution, delivery and performance of the
Loan Documents required to be delivered by Borrower hereunder are within the partnership authority
of such entity and the corporate powers of the general partners of such entity, have been duly
authorized by all requisite action, and are not in conflict with the terms of any organizational
instruments of such entity, or any instrument or agreement to which Borrower or General Partner is
a party or by which Borrower, General Partner or any of their respective assets may be bound or
affected.



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     6.3. Power of Officers. The officers of the General Partner executing the Loan
Documents required to be delivered by such entities hereunder have been duly elected or appointed
and were fully authorized to execute the same at the time each such agreement, certificate or
instrument was executed.



     6.4. Government and Other Approvals. No approval, consent, exemption or other action
by, or notice to or filing with, any governmental authority is necessary in connection with the
execution, delivery or performance of the Loan Documents required hereunder.



     6.5. Solvency.




     (i) Immediately after the Agreement Execution 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 Borrower and its Subsidiaries
on a consolidated basis, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Properties of the
Borrower and its Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the Borrower and its
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 Borrower and its 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
Borrower and its 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) Borrower does not intend to, or to permit any of its Subsidiaries to 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 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.



     6.6. Compliance With Laws. There is no judgment, decree or order or any law, rule or
regulation of any court or governmental authority binding on Borrower or any of its Subsidiaries
which would be contravened by the execution, delivery or performance of the Loan Documents required
hereunder.



     6.7. Enforceability of Agreement. This Agreement is the legal, valid and binding
agreement of the Borrower, and the Notes when executed and delivered will be the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in accordance with their
respective terms, and the Loan Documents required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors generally.



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     6.8. Title to Property. To the best of Borrower’s knowledge after due inquiry,
Borrower or its Subsidiaries has good and marketable title to the Properties and assets reflected
in the financial statements as owned by it or any such Subsidiary free and clear of Liens except
for the Permitted Liens. The execution, delivery or performance of the Loan Documents required to
be delivered by the Borrower hereunder will not result in the creation of any Lien on the
Properties. No consent to the transactions contemplated hereunder is required from any ground
lessor or mortgagee or beneficiary under a deed of trust or any other party except as has been
delivered to the Lenders.



     6.9. Litigation. There are no suits, arbitrations, claims, disputes or other
proceedings (including, without limitation, any civil, criminal, administrative or environmental
proceedings), pending or, to the best of Borrower’s knowledge, threatened against or affecting the
Borrower or any of the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the Borrower and/or would cause a Material
Adverse Financial Change of Borrower or materially impair the Borrower’s ability to perform its
obligations hereunder or under any instrument or agreement required hereunder, except as disclosed
on Schedule 6.9 hereto, or otherwise disclosed to Lenders in accordance with the terms
hereof.



     6.10. Events of Default. No Default or Event of Default has occurred and is
continuing or would result from the incurring of obligations by the Borrower under any of the Loan
Documents or any other document to which Borrower is a party.



     6.11. Investment Company Act of 1940. Borrower is not and will by such acts as may be
necessary continue not to be, an investment company within the meaning of the Investment Company
Act of 1940.



     6.12. Public Utility Holding Company Act. The Borrower is not 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 definitions of the Public Utility Holding
Company Act of 1935, as amended.



     6.13. Regulation U. The proceeds of the Borrowings will not be used, directly or
indirectly, in a manner which would cause the Facility to be treated as a “Purpose Credit.”



     6.14. No Material Adverse Financial Change. To the best knowledge of Borrower, there
has been no Material Adverse Financial Change in the condition of Borrower since the date of the
financial and/or operating statements most recently submitted to the Lenders.



     6.15. Financial Information. All financial statements furnished to the Lenders by or
at the direction of the Borrower and all other financial information and data furnished by the
Borrower to the Lenders are complete and correct in all material respects as of the date thereof,
and such financial statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as of such date. The
Borrower has no contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such statements,
information and data.




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     6.16. Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for purposes of or in
connection with this Agreement and the other Loan Documents and the transactions contemplated
therein is, and all other such factual information hereafter furnished by or on behalf of the
Borrower to the Lenders will be, true and accurate (taken as a whole) in all material respects 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.



     6.17. ERISA. (i) Borrower is not an entity deemed to hold “plan assets” within the
meaning of ERISA or any regulations promulgated thereunder 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 (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.



     6.18. Taxes. All required tax returns have been filed by Borrower with the
appropriate authorities except to the extent that extensions of time to file have been requested,
granted and have not expired or except to the extent such taxes are being contested in good faith
and for which adequate reserves, in accordance with GAAP, are being maintained.



     6.19. Environmental Matters. Except as disclosed in Schedule 6.19, each of
the following representations and warranties is true and correct 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 knowledge of the Borrower, the Properties of Borrower, its
Subsidiaries, and Investment Affiliates do not contain any Materials of
Environmental Concern in amounts or concentrations which constitute a violation of,
or could reasonably give rise to liability under, Environmental Laws.




     (ii) Borrower has not received any written notice alleging that any or all of
the Properties of Borrower and its Subsidiaries and Investment Affiliates and all
operations at the Properties are not currently in compliance with all applicable
Environmental Laws. Further, Borrower has not received any written notice alleging
the current existence of any contamination at or under such Properties in amounts or
concentrations which constitute a violation of any Environmental Law, or any
violation of any Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries or Investment Affiliates is or could be liable.




     (iii) Neither Borrower nor any of its Subsidiaries or Investment Affiliates has
received any written notice of current non-compliance, liability or potential
liability regarding Environmental Laws with regard to any of the Properties, nor
does it have knowledge that any such notice will be received or is being threatened.



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     (iv) To the knowledge of Borrower during the ownership of the Properties by any
or all of Borrower, its Subsidiaries and Investment Affiliates, Materials of
Environmental Concern have not been transported or disposed of from the Properties
of Borrower and its Subsidiaries and Investment Affiliates in violation of, or in a
manner or to a location which could reasonably give rise to liability of Borrower,
any Subsidiary, or any Investment Affiliate under, Environmental Laws, nor during
the ownership of the Properties by any or all of Borrower, its Subsidiaries and
Investment Affiliates have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of such Properties in violation
of, or in a manner that could give rise to liability of Borrower, any Subsidiary or
any Investment Affiliate under, any applicable Environmental Laws.




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




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



     6.20. Insurance. Borrower maintains insurance on its properties consistent with the
insurance maintained by other institutional owners of similar properties.



     6.21. No Brokers. Borrower has dealt with no brokers in connection with this
Facility, and no brokerage fees or commissions are payable by or to any Person in connection with
this Agreement or the Borrowings. Lenders shall not be responsible for the payment of any fees or
commissions to any broker and Borrower shall indemnify, defend and hold Lenders harmless from and
against any claims, liabilities, obligations, damages, costs and expenses (including reasonable
attorneys’ fees and disbursements) made against or incurred by Lenders as a result of claims made
or actions instituted by any broker or Person claiming by, through or under Borrower in connection
with the Facility.



     6.22. No Violation of Usury Laws. No aspect of any of the transactions contemplated
herein violate or will violate any usury laws or laws regarding the validity of agreements to pay
interest in effect on the date hereof.



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     6.23. Not a Foreign Person. Borrower is not a “foreign person” within the meaning of
Section 1445 or 7701 of the Internal Revenue Code.



     6.24. No Trade Name. Except for the name “First Industrial,” and except as otherwise
set forth on Schedule 6.24 attached hereto, Borrower does not use any trade name and has
not and does not do business under any name other than their actual names set forth herein. The
principal place of business of Borrower is as stated in the recitals hereto.



     6.25. Subsidiaries. Schedule 6.25 hereto contains an accurate list of all of
the presently existing Subsidiaries of Borrower, setting forth 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.



     6.26. Unencumbered Assets. Schedule 6.26 hereto contains a complete and
accurate description of Unencumbered Assets as of June 30, 2010 and as supplemented from time to
time including the entity that owns each Unencumbered Asset. With respect to each Project
identified from time to time as an Unencumbered Asset, Borrower hereby represents and warrants as
follows except to the extent disclosed in writing to the Lenders and approved by the Required
Lenders (which approval shall not be unreasonably withheld):




     (a) 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 6.20 hereof.




     (b) 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), building codes, land use and Environmental
Laws, and other similar laws (“Applicable Laws”).




     (c) 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.




     (d) 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.




     (e) 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.




     (f) 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



69









 






waste that would materially and adversely affect the value of the Unencumbered Asset, is in good
repair and there is no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from 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.




     (g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer
systems located on the Unencumbered Asset are in a good and safe condition and repair and to
Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such
systems.




     (h) 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
amenities, access routes or other items that materially benefit the Unencumbered Asset are
under direct control of Borrower, constitute permanent easements that benefit 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.




     (i) There are no 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.




     (j) The Unencumbered Asset satisfies each of the requirements for an Unencumbered Asset
as set forth in the definition thereof.



     A breach of any of the representations and warranties contained in this Section 6.26
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).



     6.27.
Patriot Act and Other Specified Laws.


     (a)
To the extent applicable, the Borrower is in compliance, in all material respects, with the (i) Trading with the
Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) Uniting and Strengthening
America by Proving Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.  No part of the proceeds of
 the Loans or Letters of Credit will be used, directly or indirectly, in violation in any material respect of the United
States Foreign Corrupt Practices Act of 1977.  The Borrower is not engaged in and has not engaged in any course of conduct
that could reasonably be expected to subject any of its properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations or other similar criminal laws.  The Borrower is not named
on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Department of Treasury
Office of Foreign Assets Control.



     (b)   The
Borrower (i) is not a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)); (ii) does not engage in any dealings or transactions
prohibited by Section 2 of such Executive Order, or, to the knowledge of the Borrower after due inquiry, is not otherwise
associated with any such Person in any manner that violates such Section 2; or (iii) is not a Person on the list of
Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S.
Department of Treasury’s Office of Foreign Assets Control regulation or executive order.



     Borrower agrees that all of its representations and warranties set forth in Article VI
of this Agreement and elsewhere in this Agreement are true on the Agreement Execution Date, and
will be true on each Effective Date in all material respects (except with respect to matters which
have been disclosed in writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in writing to and
approved by the Required Lenders) upon each request for disbursement of a Borrowing,
provided that the Borrower shall only be obligated to update any Schedules referred to in this
Article VI and the financial statements required under Section 8.2(i) on a
quarterly basis, unless



70









 




any change otherwise required to be disclosed could reasonably be expected
to have a Material Adverse Effect. Each request for disbursement hereunder shall constitute a
reaffirmation of such representations and warranties as deemed modified in accordance with the
disclosures made and approved, as aforesaid, as of the date of such request and disbursement.




ARTICLE VII.




ADDITIONAL REPRESENTATIONS AND WARRANTIES



     The General Partner hereby represents and warrants to the Lenders that:



     7.1. Existence. The General Partner is a corporation duly organized and existing
under the laws of the State of Maryland, with its principal place of business in the State of
Illinois, is duly qualified as a foreign corporation and properly licensed (if required) and in
good standing in each jurisdiction where the failure to qualify or be licensed (if required) would
constitute a Material Adverse Financial Change with respect to the General Partner or have a
Material Adverse Effect on the business or properties of the General Partner.



     7.2. Corporate Powers. The execution, delivery and performance of the Loan Documents
required to be delivered by the General Partner hereunder are within the corporate powers of the
General Partner, have been duly authorized by all requisite corporate action, and are not in
conflict with the terms of any organizational instruments of the General Partner, or any instrument
or agreement to which the General Partner is a party or by which General Partner or any of its
assets is bound or affected.



     7.3. Power of Officers. The officers of the General Partner executing the Loan
Documents required to be delivered by the General Partner hereunder have been duly elected or
appointed and were fully authorized to execute the same at the time each such agreement,
certificate or instrument was executed.



     7.4. Government and Other Approvals. No approval, consent, exemption or other action
by, or notice to or filing with, any governmental authority is necessary in connection with the
execution, delivery or performance of the Loan Documents required hereunder.



     7.5. Compliance With Laws. There is no judgment, decree or order or any law, rule or
regulation of any court or governmental authority binding on the General Partner which would be
contravened by the execution, delivery or performance of the Loan Documents required hereunder.



     7.6. Enforceability of Agreement. This Agreement is the legal, valid and binding
agreement of the General Partner, as the general partner of Borrower, enforceable against the
General Partner in accordance with its respective terms, and the Loan Documents required hereunder,
when executed and delivered, will be similarly legal, valid, binding and enforceable except to the
extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the rights of creditors generally.



     7.7. Liens; Consents. The execution, delivery or performance of the Loan Documents
required to be delivered by the General Partner hereunder will not result in the creation of any



71









 




Lien on the Properties other than in favor of the Lenders. No consent to the transactions
hereunder is required from any ground lessor or mortgagee or beneficiary under a deed of trust or
any other party except as has been delivered to the Lenders.




     7.8. Litigation. There are no suits, arbitrations, claims, disputes or other
proceedings (including, without limitation, any civil, criminal, administrative or environmental
proceedings), pending or, to the best of General Partner’s knowledge, threatened against or
affecting the General Partner or any of the Properties, the adverse determination of which
individually or in the aggregate would have a Material Adverse Effect on the General Partner and/or
would cause a Material Adverse Financial Change with respect to the General Partner or materially
impair the General Partner’s ability to perform its obligations hereunder or under any instrument
or agreement required hereunder, except as disclosed on Schedule 7.8 hereto, or otherwise
disclosed to Lenders in accordance with the terms hereof.



     7.9. Events of Default. No Default or Event of Default has occurred and is continuing
or would result from the incurring of obligations by the General Partner under any of the Loan
Documents or any other document to which General Partner is a party.



     7.10. Investment Company Act of 1940. The General Partner is not, and will by such
acts as may be necessary continue not to be, an investment company within the meaning of the
Investment Company Act of 1940.



     7.11. Public Utility Holding Company Act. The General Partner is not 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 definitions of the Public
Utility Holding Company Act of 1935, as amended.



     7.12. No Material Adverse Financial Change. There has been no Material Adverse
Financial Change in the condition of the General Partner since the last date on which the financial
and/or operating statements were submitted to the Lenders.



     7.13. Financial Information. All financial statements furnished to the Lenders by or
on behalf of the General Partner and all other financial information and data furnished by or on
behalf of the General Partner to the Lenders are complete and correct in all material respects as
of the date thereof, and such financial statements have been prepared in accordance with GAAP and
fairly present the consolidated financial condition and results of operations of the General
Partner as of such date. The General Partner has no contingent obligations, liabilities for taxes
or other outstanding financial obligations which are material in the aggregate, except as disclosed
in such statements, information and data.



     7.14. Factual Information. All factual information heretofore or contemporaneously
furnished by or on behalf of the General Partner to the Lenders for purposes of or in connection
with this Agreement and the other Loan Documents and the transactions contemplated therein is, and
all other such factual information hereafter furnished by or on behalf of the General Partner to
the Lenders will be, true and accurate in all material respects
(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.



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     7.15. ERISA. (i) General Partner is not an entity deemed to hold “plan assets”
within the meaning of ERISA or any regulations promulgated thereunder 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 (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.



     7.16. Taxes. All required tax returns have been filed by the General Partner with the
appropriate authorities except to the extent that extensions of time to file have been requested,
granted and have not expired or except to the extent such taxes are being contested in good faith
and for which adequate reserves, in accordance with GAAP, are being maintained.



     7.17. No Brokers. General Partner has dealt with no brokers in connection with this
Facility, and no brokerage fees or commissions are payable by or to any Person in connection with
this Agreement or the Borrowings. Lenders shall not be responsible for the payment of any fees or
commissions to any broker and General Partner shall indemnify, defend and hold Lender harmless from
and against any claims, liabilities, obligations, damages, costs and expenses (including reasonable
attorneys’ fees and disbursements) made against or incurred by Lender as a result of claims made or
actions instituted by any broker or Person claiming by, through or under the General Partner in
connection with the Facility.



     7.18. Subsidiaries. Schedule 7.18 hereto contains an accurate list of all of
the presently existing Subsidiaries of General Partner, setting forth their respective
jurisdictions of formation, the percentage of their respective Capital Stock owned by it or its
Subsidiaries and the Properties owned by them. 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. No Subsidiary appears on the list of Specially Designed Nationals and Blocked
Persons promulgated by The Office of Foreign Assets Control (“OFAC”) of the US Department of the
Treasury.



     7.19. Status. General Partner is a corporation listed and in good standing on the New
York Stock Exchange (“NYSE”) and is currently qualified as a real estate investment trust under the
Code.



     7.20.
Patriot Act and Other Specified Laws.



     (a)
To the extent applicable, the General Partner is in compliance, in all material respects, with the (i) Trading with the
Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) Uniting and Strengthening
America by Proving Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.  No part of the proceeds
of the Loans or Letters of Credit will be used, directly or indirectly, in violation in any material respect of the United
States Foreign Corrupt Practices Act of 1977.  The General Partner is not engaged in and has not engaged in any course of
conduct that could reasonably be expected to subject any of its properties to any Lien, seizure or other forfeiture under
any criminal law, racketeer influenced and corrupt organizations or other similar criminal laws.  The General Partner is
not named on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Department of
Treasury Office of Foreign Assets Control.


     (b) The General
Partner (i) is not a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)); (ii) does not engage in any dealings or transactions
prohibited by Section 2 of such Executive Order, or, to the knowledge of the General Partner after due inquiry, is not
otherwise associated with any such Person in any manner that violates such Section 2; or (iii) is not a Person on the list
of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S.
Department of Treasury’s Office of Foreign Assets Control regulation or executive order.




     General Partner agrees that all of its representations and warranties set forth in Article
VII of this Agreement and elsewhere in this Agreement are true on the Agreement Execution Date,
and will be true on each Effective Date in all material respects (except with respect to matters
which have been disclosed in writing to and approved by the Required Lenders, and will be true in
all material respects (except with respect to matters which have been disclosed in writing to and
approved by the Required Lenders upon each request for disbursement of a Borrowing, provided that
the General Partner shall only be obligated to update any Schedules referred to in this Article
VII and the financial statements required under Section 8.2(i) on a quarterly basis,
unless any change otherwise required to be disclosed could reasonably be expected to have a
Material Adverse Effect. Each request for disbursement hereunder shall
constitute a reaffirmation of such representations and warranties as deemed modified in
accordance with the disclosures made and approved, as aforesaid, as of the date of such request and
disbursement.



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ARTICLE VIII.




AFFIRMATIVE COVENANTS



     The Borrower (and the General Partner, if expressly included in Sections contained in this
Article) covenant and agree that so long as the Commitment of any Lender shall remain available and
until the full and final payment of all Obligations incurred under the Loan Documents each will:



     8.1. Notices. Promptly give written notice to Administrative Agent (who will promptly
send such notice to Lenders) of:




     (a) all litigation or arbitration proceedings affecting the Borrower, the General
Partner or any Subsidiary where the amount claimed is $5,000,000 or more;




     (b) any Default or Event of Default, specifying the nature and the period of existence
thereof and what action has been taken or been proposed to be taken with respect thereto;




     (c) all claims filed against any property owned by the Borrower or the General Partner
which, if adversely determined, could have a Material Adverse Effect on the ability of the
Borrower or the General Partner to meet any of their obligations under the Loan Documents;




     (d) the occurrence of any other event which might have a Material Adverse Effect or
cause a Material Adverse Financial Change on or with respect to the Borrower or the General
Partner;




     (e) any Reportable Event or any “prohibited transaction” (as such term is defined in
Section 4975 of the Code) in connection with any Plan or any trust created thereunder, which
may, singly or in the aggregate materially impair the ability of the Borrower or the General
Partner to repay any of its obligations under the Loan Documents, describing the nature of
each such event and the action, if any, the Borrower or the General Partner, as the case may
be, proposes to take with respect thereto;




     (f) any notice from any federal, state, local or foreign authority regarding any
Hazardous Material, asbestos, or other environmental condition, proceeding, order, claim or
violation affecting any of the Properties.



     8.2. Financial Statements, Reports, Etc. The Borrower and the General Partner each
shall maintain, for itself and each Subsidiary, a system of accounting established and administered
in accordance with GAAP, and shall furnish to the Lenders:




     (i) quarterly financial statements (including a balance sheet income statement,
and cash flow statement) and related reports in form and substance satisfactory to
the Lenders not later than forty-five (45) days after the end of each of the first
three fiscal quarters, and not later than ninety (90) days after the end of each
fiscal year, annual audited financial statements, audited by an accounting



74









 






firm as reasonably approved by Administrative Agent, provided, however, Administrative Agent
shall only have the right to approve such accounting firm if the accounting firm is
not a big 4 accounting firm, all certified by Borrower’s chief financial officer or
chief accounting officer, calculation of the financial covenants described below, a
description of Unencumbered Assets, a listing of capital expenditures (in the level
of detail as currently disclosed in Borrower’s “Supplemental Information”), a report
listing and describing all newly acquired Properties, including their cash flow,
cost and secured or unsecured Indebtedness assumed in connection with such
acquisition, if any, summary Property information for all Properties, 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 to evaluate the quarterly compliance certificate delivered as provided
below;




     (ii) copies of all Form 10-Ks, 10-Qs, 8-Ks, and any other public information
filed with the Securities Exchange Commission by Borrower or the General Partner
once a quarter simultaneously with delivering the compliance certificate described
below, along with any other materials distributed to the shareholders of the General
Partner or the partners of the Borrower from time to time, including a copy of the
General Partner’s annual report. To the extent any of such reports contains
information required under the other subsections of this Section 8.2, the
information need not be furnished separately under the other subsections;




     (iii) not later than forty-five (45) days after the end of the first three
fiscal quarters, and not later than ninety (90) days after the end of the fiscal
year, a report certified by the entity’s chief financial officer or chief accounting
officer, containing Property Operating Income from individual properties owned by
the Borrower or a Wholly-Owned Subsidiary and included as Unencumbered Assets.




     (iv) Not later than forty-five (45) days after the end of each of the first
three fiscal quarters, and not later than ninety (90) days after the end of the
fiscal year, a compliance certificate in substantially the form of Exhibit H
hereto signed by the Borrower’s chief financial officer or chief accounting officer
confirming that Borrower is in compliance with all of the covenants of the Loan
Documents, including the mandatory prepayment covenants contained in Section
2.24 hereof, showing the calculations and computations necessary to determine
compliance with the financial covenants contained in this Agreement (including such
schedules and backup information as may be necessary to demonstrate such compliance)
and stating that to such officer’s best knowledge, there is no other Default or
Event of Default exists, or if any Default or Event of Default exists, stating the
nature and status thereof;




     (v) As soon as possible and in any event within ten (10) Business Days after
the Borrower knows that any Reportable Event has occurred with respect to any Plan,
a statement, signed by the chief financial officer of Borrower, describing said
Reportable Event and within twenty (20) days after such



75









 






Reportable Event, a statement signed by such chief financial officer describing the action which
Borrower proposes to take with respect thereto; and (b) within ten (10) Business
Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of
Labor with respect to a Plan regarding any excise tax, proposed termination of a
Plan, prohibited transaction or fiduciary violation under ERISA or the Code which
could result in any liability to Borrower or any member of the Controlled Group in
excess of $100,000; and (c) within ten (10) Business Days of filing, any Form 5500
filed by Borrower with respect to a Plan, or any member of the Controlled Group
which includes a qualified accountant’s opinion.




     (vi) As soon as possible and in any event within thirty (30) days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that the Borrower
or any of its Subsidiaries is or may be liable to any Person as a result of the
release by such entity, or 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 Borrower or any of its Subsidiaries or Investment Affiliates,
which, in either case, could be reasonably likely to have a Material Adverse Effect;




     (vii) Promptly upon the furnishing thereof to the shareholders of the Borrower,
copies of all financial statements, reports and proxy statements so furnished;




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




     (ix) Promptly upon receipt thereof, notices with respect to the ratings for
Borrower’s or General Partner’s long-term, senior unsecured debt.




     (x) As soon as possible, and in any event within ten (10) days after the
Borrower knows of any fire or other casualty or any pending or threatened
condemnation or eminent domain proceeding with respect to all or any material
portion of any Unencumbered Asset, a statement signed by the Chief Financial Officer
of Borrower, describing such fire, casualty or condemnation and the action Borrower
intends to take with respect thereto; and




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



     8.3. Existence and Conduct of Operations. Except as permitted herein, maintain and
preserve its existence and all rights, privileges and franchises now enjoyed and necessary for
the operation of its business, including remaining in good standing in each jurisdiction in
which business is currently operated. The Borrower and the General Partner shall carry on and
conduct their respective businesses in substantially the same manner and in substantially the same
fields of enterprise as presently conducted. The Borrower will do, and will cause each of its



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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,
limited liability company or limited partnership, as the case may be, in its jurisdiction of
incorporation/formation. The Borrower will maintain all requisite authority to conduct its
business in each jurisdiction in which the Properties are located and, except where the failure to
be so qualified would not have a Material Adverse Effect, in each jurisdiction required to carry on
and conduct its businesses in substantially the same manner as it is presently conducted, and,
specifically, neither the Borrower nor its Subsidiaries will undertake any business other than the
acquisition, development, ownership, management, operation and leasing of industrial properties and
ancillary businesses specifically related thereto, except that the Borrower and its Subsidiaries
and Investment Affiliates may invest in other assets subject to the certain limitations contained
herein with respect to the following specified categories of assets: (i) Unimproved Land; (ii)
other property holdings (excluding cash, Cash Equivalents, non-industrial Properties and
Indebtedness of any Subsidiary to the Borrower); (iii) stock holdings other than in Subsidiaries;
(iv) mortgages; (v) unconsolidated joint ventures and partnerships, and (vi) Assets Under
Development. The total investment in all the foregoing investment categories in the aggregate
shall be less than or equal to twenty percent (20%) of Implied Capitalization Value. For the
purposes of this Section 8.3, all investments shall be valued in accordance with GAAP.




     8.4. Maintenance of Properties. Maintain, preserve, protect and keep the Properties
in good repair, working order and condition, and make all necessary and proper repairs, renewals
and replacements, normal wear and tear excepted.



     8.5. Insurance. Upon request of the Administrative Agent, provide a certificate of
insurance from all insurance carriers who maintain policies with respect to the Properties within
thirty (30) days after the end of each fiscal year, evidencing that the insurance required to be
furnished to Lenders pursuant to Section 6.20 hereof is in full force and effect. Borrower
shall timely pay, or cause to be paid, all premiums on all insurance policies required under this
Agreement from time to time. Borrower shall promptly notify its insurance carrier or agent
therefor (with a copy of such notification being provided simultaneously to Administrative Agent)
if there is any occurrence which, under the terms of any insurance policy then in effect with
respect to the Properties, requires such notification.



     8.6. Payment of Obligations. Pay all taxes, assessments, governmental charges and
other obligations when due, except such as may be contested in good faith or as to which a bona
fide dispute may exist, and for which adequate reserves have been provided in accordance with sound
accounting principles used by Borrower on the date hereof.



     8.7. Compliance with Laws. Comply in all material respects with all applicable laws,
rules, regulations, orders and directions of any governmental authority having jurisdiction over
Borrower, General Partner, or any of their respective businesses.



     8.8. Adequate Books. Maintain adequate books, accounts and records in order to
provide financial statements in accordance with GAAP and, if requested by any Lender, permit
employees or representatives of such Lender at any reasonable time and upon reasonable notice to
inspect and audit the properties of Borrower and of the Consolidated Operating Partnership,



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and to examine or audit the inventory, books, accounts and records of each of them and make copies and
memoranda thereof.




     8.9. ERISA. Comply in all material respects with all requirements of ERISA applicable
to it with respect to each Plan.



     8.10. Maintenance of Status. General Partner shall at all times (i) remain as a
corporation listed and in good standing on the New York Stock Exchange (NYSE), and (ii) take all
steps maintain General Partner’s status as a real estate investment trust in compliance with all
applicable provisions of the Code (unless otherwise consented to by the Required Lenders).



     8.11. Use of Proceeds. Use the proceeds of the Term Facility to repay Indebtedness
under the Existing Credit Agreement and use the proceeds of the Revolving Facility for the general
business purposes of the Borrower, including without limitation working capital needs, closing
costs, interim funding for property acquisitions and construction of new industrial properties,
and/or payment of other debts and obligations of Borrower.



     8.12. Pre-Acquisition Environmental Investigations. Cause to be prepared prior to the
acquisition of each project that it intends to acquire an environmental report pursuant to a
standard scope of work consistent with that used by other institutional buyers of similar
properties.



     8.13. Distributions. Provided there is no Monetary Default then existing and provided
there is not an Event of Default relating to a breach of the financial covenants contained in
Section 9.7 below, the Borrower may make distributions to the General Partner and the
General Partner may make distributions to its shareholders. Notwithstanding the foregoing, unless
at the time of such distribution there is a Monetary Default, the Borrower shall be permitted to
make distributions to General Partner and the General Partner shall be permitted at all times to
make distributions of whatever amount is necessary to maintain its tax status as a real estate
investment trust.



ARTICLE IX.




NEGATIVE COVENANTS



     The Borrower covenants and agrees that, so long as the Commitment shall remain available and
until full and final payment of all Obligations incurred under the Loan Documents, without the
prior written consent of either all of the Lenders pursuant to Section 14.13(b)(iii) or the
consent of the Required Lenders in all other cases, it will not, and the General Partner will not
and, in the case of Sections 9.9, Borrower’s Subsidiaries will not:



     9.1. Change in Business. Engage in any business activities or operations other than
(i) the ownership and operation of the Properties, or (ii) other business functions and
transactions related to the financing, ownership, acquisition, development and/or management of
bulk warehouse and light industrial properties, or without obtaining the prior written consent
of the Required Lenders materially change the nature of the use of the Properties.



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     9.2. Change of Management of Properties. Change the management of the Properties,
except that any Affiliate of Borrower or the General Partner shall be permitted to manage any of
the Properties.



     9.3. Change of Borrower Ownership. Without the consent of the Required Lenders, allow
(i) the General Partner to own less than fifty-one percent (51%) of the partnership interests in
Borrower, (ii) the Borrower to be controlled by a Person other than the General Partner, (iii) a
Change in Control to occur, or (iv) any pledge of, other encumbrance on, or conversion to limited
partnership interests of, any of the general partnership interests in the Borrower. If any of the
foregoing occurs with the consent of the Required Lenders, each non-consenting Lender shall have
the option to terminate its Commitment and such termination shall be effective upon notice to
Administrative Agent and Borrower of the termination. Upon the termination of a Lender’s
Commitment in accordance with the foregoing provision, the Lender’s obligation to fund Borrowings
and to issue Facility Letters of Credit shall be terminated and Borrower shall repay any
outstanding Obligations due to such Lender prior to or concurrently with the occurrence of any of
the foregoing events. Following the termination of any Commitments pursuant to this provision, the
Aggregate Commitment shall be reduced by the amount of the Commitments terminated, and the pro rata
shares of each remaining Lender shall be adjusted to reflect the new Aggregate Commitment.



     9.4. Use of Proceeds. Apply or permit to be applied any proceeds of any Borrowing
directly or indirectly, to the funding of any purchase of, or offer for, any share of capital stock
of any publicly held corporation unless the board of directors of such corporation has consented to
such offer prior to any public announcements relating thereto and all
of the Lenders have
consented to such use of the proceeds of the Facility.



     9.5. Liens. Create, incur, or suffer to exist (or permit any of its Subsidiaries to
create, incur, or suffer to exist) any Lien in, of or on the Property of any member of the
Consolidated Operating Partnership other than:




     (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 which arise by operation of law, such as carriers’, warehousemen’s,
landlords’, materialmen and mechanics’ liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than thirty
(30) 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;



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




     (v) Liens of any Subsidiary in favor of the Borrower or General Partner; and




     (vi) Liens on Properties other than Unencumbered Assets 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 9.5 shall be deemed to be “Permitted Liens”.




     9.6. Regulation U. Use the proceeds of the Loans for any other purpose than as
provided for in Section 8.11 and Section 9.4 hereof. No part of the proceeds of
any Loan will be used, whether directly or indirectly for any purpose that entails a violation of
any of the regulations of the Board of Governors of the Federal Reserve System, including
Regulations T, U and X. The proceeds will not be used in a manner which would cause the Facility
to be treated as a “Purpose Credit.”



     9.7. Indebtedness and Cash Flow Covenants. Permit or suffer:




     (a) as of the last day of any fiscal quarter, the ratio of (A) the sum of (1) EBITDA of
the Consolidated Operating Partnership plus (2) interest income (other than any interest
income from assets being used to support Defeased Debt) to (B) the sum of (1) Debt Service
plus, without duplication, (2) all payments on account of preferred stock or preferred
partnership units of any member of the Consolidated Operating Partnership for such quarter
plus (3) all ground lease payments due from any member of the Consolidated Operating
Partnership to the extent not deducted as an expense in calculating EBITDA of the
Consolidated Operating Partnership (the “Fixed Charge Coverage Ratio”), to be less
than (i) 1.20 to 1.0 from the Agreement Execution Date through September 30, 2011 and (ii)
1.25 to 1.0 from October 1, 2011 through the Maturity Date, with all such calculations in
clauses (A) and (B) above based on the results of the four (4) consecutive fiscal quarters
then ended; provided however that such ratio may be less than 1.25 to 1.0, but not less than
1.20 to 1.0 for up to any four (4) fiscal quarters ending after October 1, 2011 through the
Maturity Date.




     (b) as of the last day of any fiscal quarter, the Consolidated Leverage Ratio to exceed
(i) sixty-five percent (65%) from the Agreement Execution Date through September 30, 2011
and (ii) sixty percent (60%) thereafter;




     (c) as of the last day of any fiscal quarter, the ratio of Value of Unencumbered Assets
to outstanding Consolidated Senior Unsecured Debt to be less than (i) 1.30 to 1.0 from the
Agreement Execution Date through September 30, 2011 and (ii) 1.60 to 1.0 from October 1,
2011 through the Maturity Date; provided that such ratio may be up to



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.10 to 1.0 below the applicable required ratio for one quarter after the Agreement Execution Date.




     (d) as of the last day of any fiscal quarter, Consolidated Secured Debt to exceed 40%
of Implied Capitalization Value of the Consolidated Operating Partnership.




     (e) as of the last day of any fiscal quarter, the Borrower to be out of compliance with
any of the financial covenants regarding limitations on incurrence of indebtedness set forth
in the Indentures on a pro forma basis. For purposes hereof, calculation on a “pro forma
basis” shall mean that the financial covenants are calculated so that (A) the sum of the
Aggregate Revolving Credit Commitments and the outstanding principal amount of the Term Loan
(the “Assumed Facility Outstandings”) shall be treated as “indebtedness secured by
an encumbrance”, “secured debt” or any similar term (and no longer treated as “unsecured
debt” or any similar term) thereunder and (B) an amount equal to the Assumed Facility
Outstandings divided by 60% (representing assets with a loan-to-value ratio of 60%) shall be
deducted from the value of “total unencumbered assets” or any similar term thereunder.




     (f) as of any day, the Value of Unencumbered Assets to be less than $1,300,000,000.




     (g) as of the last day of any fiscal quarter, the ratio of (A) Property Operating
Income from Unencumbered Assets that are not Assets Under Development for such fiscal
quarter to (B) interest expense on all Consolidated Senior Unsecured Debt for such fiscal
quarter (which shall be calculated to be equal to the greatest of the following for such
period: (i) actual interest expense on Consolidated Senior Unsecured Debt determined in
accordance with GAAP, (ii) interest that would be payable on Consolidated Senior Unsecured
Debt using an assumed interest rate equal to the 10-year U.S. Treasury Rate as of the last
day of such fiscal quarter plus 3.0% and (iii) interest that would be payable on
Consolidated Senior Unsecured Debt using an assumed interest rate of (1) 7.00% from the
Effective Date through December 31, 2011, and (2) 7.50% thereafter) to be less than (x) 1.30
to 1.0 from the Agreement Execution Date through September 30, 2011, and (y) 1.45 to 1.0
from October 1, 2011 through the Maturity Date; provided that such ratio may be up to .10 to
1.0 below the applicable required ratio for one quarter after the Agreement Execution Date.


The foregoing covenants set forth in paragraphs (c), (e), (f) and (g) above shall be tested at the
end of each fiscal quarter (for the applicable reporting period), on a pro-forma basis at the time
of each Borrowing under the Facility (using the latest quarterly financial statements then
available and taking into account the proposed Borrowing), and on a pro-forma basis upon any Asset
Sale or incurrence of any Indebtedness by the Consolidated Operating Partnership (using the latest
quarterly financial statements then available and taking into account the proposed incurrence of
Indebtedness). To the extent the Consolidated Operating Partnership has Defeased
Debt, both the underlying debt and interest payable thereon and the financial assets used to
defease such debt and interest earned thereon shall be excluded from calculations of the foregoing
financial covenants.





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     9.8. Change of Control; Mergers and Dispositions. Enter into any merger,
consolidation, reorganization or liquidation or transfer or otherwise dispose of all or a
substantial portion of its properties, except for: such transactions that occur between
wholly-owned Subsidiaries; transactions where Borrower and the General Partner are the surviving
entities and there is no change in business conducted, loss of an investment grade credit rating or
Change in Control, and no Default or Event of Default under the Loan Documents results from such
transaction; or as otherwise approved in advance by the Lenders. Borrower will notify the
Administrative Agent (who will promptly notify Lenders) of any acquisitions, dispositions, mergers
or asset purchases involving assets valued in excess of 10% of the Consolidated Operating
Partnership’s then-current Market Value Net Worth and certify compliance with covenants after
giving effect to such proposed acquisition, disposition, merger, or asset purchase regardless of
whether any consent is required in accordance with the last paragraph of Section 9.7 above.



     9.9. Negative Pledge. Borrower agrees that throughout the term of this Facility, no
“negative pledge” on any Project then included in Unencumbered Assets restricting Borrower’s (or
wholly-owned Subsidiary’s) right to sell or encumber such Project shall be given to any other
lender or creditor or, if such a “negative pledge” is given, the Project affected shall be
immediately excluded from Unencumbered Assets.



ARTICLE X.




DEFAULTS



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



     10.1. Nonpayment of Principal. The Borrower fails to pay any principal portion of the
Obligations when due, whether on the Maturity Date or otherwise.



     10.2. Certain Covenants. The Borrower, General Partner and/or Consolidated Operating
Partnership, as the case may be, is not in compliance with any one or more of Sections
8.10, 8.13, 9.3, 9.4, 9.5, 9.7, 9.8, or
9.9 hereof.



     10.3. Nonpayment of Interest and Other Obligations. The Borrower fails to pay any
interest or other portion of the Obligations, other than payments of principal, and such failure
continues for a period of five (5) days after the date such payment is due.



     10.4. Cross Default. Any monetary default occurs (after giving effect to any
applicable cure period) under any other Indebtedness (which includes liability under Guaranties) of
Borrower or the General Partner, singly or in the aggregate, in excess of Ten Million Dollars
($10,000,000), other than (i) Indebtedness arising from the purchase of personal property or the
provision of services, the amount of which is being contested by Borrower or (ii) Indebtedness
which is “non-recourse”, i.e., which is not recoverable by the creditor thereof from the general
assets of the Borrower, the General Partner or any of their Affiliates, but is limited to the
proceeds of certain real estate, improvements and related personal property.



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     10.5. Loan Documents. Any Loan Document is not in full force and effect or a default
has occurred and is continuing thereunder after giving effect to any cure or grace period in any
such document.



     10.6. Representation or Warranty. At any time or times hereafter any representation
or warranty set forth in Articles VI or VII of this Agreement or in any other Loan
Document or in any statement, report or certificate now or hereafter made by the Borrower or the
General Partner to the Lenders or the Administrative Agent is not true and correct in any material
respect.



     10.7. Covenants, Agreements and Other Conditions. The Borrower or the General Partner
fails to perform or observe any of the other covenants, agreements and conditions contained in
Articles VIII and IX (except for Sections 8.10, 8.13, 9.3,
9.4, 9.5, 9.7, 9.8, or 9.9hereof) and elsewhere in this
Agreement or any of the other Loan Documents in accordance with the terms hereof or thereof, not
specifically referred to herein, and such Default continues unremedied for a period of thirty (30)
days after written notice from Administrative Agent, provided, however, that if such Default is
susceptible of cure but cannot by the use of reasonable efforts be cured within such thirty (30)
day period, such Default shall not constitute an Event of Default under this Section 10.7
so long as (i) the Borrower or the General Partner, as the case may be, has commenced a cure within
such thirty-day period and (ii) thereafter, Borrower or General Partner, as the case may be, is
proceeding to cure such default continuously and diligently and in a manner reasonably satisfactory
to Lenders and (iii) such default is cured not later than sixty (60) days after the expiration of
such thirty (30) day period.



     10.8. No Longer General Partner. The General Partner shall no longer be the sole
general partner of Borrower.



     10.9. Material Adverse Financial Change. The Borrower or General Partner has suffered
a Material Adverse Financial Change or is Insolvent.



     10.10. Bankruptcy.




     (a) The General Partner, the Borrower or any Subsidiary having more than $10,000,000 of
Equity Value (as defined below) 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
10.10(a), (vi) fail to contest in good faith any appointment or proceeding described in
Section 10.10(b) or (vii) not pay, or admit in writing its inability to pay, its
debts generally as they become due. As used herein, the term “Equity Value” of a Subsidiary
shall mean (1) Property



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Operating Income of such Subsidiary’s Properties owned as of the
Agreement Execution Date capitalized at a 8.50% rate, plus (2) the purchase price of any of
such Subsidiary’s Properties acquired after the Agreement Execution Date less (3) any
Indebtedness of such Subsidiary;




     (b) A receiver, trustee, examiner, liquidator or similar official shall be appointed
for the General Partner, Borrower or any Subsidiary having more than $10,000,000 of Equity
Value or any substantial portion of any of their Properties, or a proceeding described in
Section 10.10(a)(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.



     10.11. Legal Proceedings. Borrower or General Partner is enjoined, restrained or in
any way prevented by any court order or judgment or if a notice of lien, levy, or assessment is
filed of record with respect to all or any part of the Properties by any governmental department,
office or agency, which could materially adversely affect the performance of the obligations of
such parties hereunder or under the Loan Documents, as the case may be, or if any proceeding is
filed or commenced seeking to enjoin, restrain or in any way prevent the foregoing parties from
conducting all or a substantial part of their respective business affairs and failure to vacate,
stay, dismiss, set aside or remedy the same within ninety (90) days after the occurrence thereof.



     10.12. ERISA. Borrower or General Partner is deemed to hold “plan assets” within the
meaning of ERISA or any regulations promulgated thereunder 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).



     10.13. Change in Control. A Change in Control has occurred.



     10.14. Failure to Satisfy Judgments. The General Partner, the Borrower or any of its
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, unless the liability is insured against and the insurer has not challenged coverage of such
liability.



     10.15. Environmental Remediation. Failure to remediate within the time period
required by law or governmental order, (or within a reasonable time in light of the nature of the
problem if no specific time period is so established), environmental problems in violation of
applicable law related to Properties of Borrower and/or its Subsidiaries where the estimated cost
of remediation is in the aggregate in excess of $20,000,000, in each case after all administrative
hearings and appeals have been concluded.



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ARTICLE XI.




ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES



     11.1. Acceleration. If any Event of Default described in Section 10.10 hereof
occurs, the Commitments and obligation of the Lenders to make Borrowings and of the Issuing Bank to
issue Facility Letters of Credit hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower. If any other Event of Default
described in Article X hereof occurs and is continuing, the Administrative Agent, with the
consent of the Required Lenders, may, and at the request of the Required Lenders shall, by notice
to the Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other Obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.



     In addition to the foregoing, following the occurrence of an Event of Default and so long as
any Facility Letter of Credit has not been fully drawn and has not been cancelled or expired by its
terms, upon demand by the Required Lenders the Borrower shall deposit in the Letter of Credit
Collateral Account cash in an amount equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon provided that (i) the portions of such amount attributable to undrawn
Alternative Currency Letters of Credit or LC Disbursements in an Alternative Currency that the
Borrowers are not late in reimbursing shall be deposited in the applicable Alternative Currencies
in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Default with respect to any Borrower described in Section 10.10. For the
purposes of this paragraph, the Alternative Currency LC Exposure shall be calculated using the
Exchange Rates on the date notice demanding cash collateralization is delivered to a Borrower.
Each Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.12. Each such deposit pursuant to this paragraph or pursuant to
Section 2.12 shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of each Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
Reimbursement Obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Domestic
Revolving Lenders with LC Exposure representing at least 51% of the total LC Exposure), be



85









 




applied to satisfy other obligations of such Borrower under this Agreement. If a Borrower is
required to provide an amount of cash collateral hereunder as a result of the occurrence of a
Default, such amount (to the extent not applied as aforesaid) shall be returned to such Borrower
within three Business Days after all Defaults have been cured or waived. If a Borrower is required
to provide an amount of cash collateral hereunder pursuant to Section 2.12, such amount (to
the extent not applied as aforesaid) shall be returned to such Borrower as and to the extent that,
after giving effect to such return, such Borrower would remain in compliance with Section
2.12, and no Default shall have occurred and be continuing. The Borrower shall have no control
over funds in the Letter of Credit Collateral Account, which funds shall be invested by the
Administrative Agent from time to time in its discretion in certificates of deposit of JPMCB having
a maturity not exceeding thirty (30) days. Such funds shall be promptly applied by the
Administrative Agent to reimburse the Issuing Bank for drafts drawn from time to time under the
Facility Letters of Credit and to pay any fees or other amounts due with respect thereto. Such
funds, if any, remaining in the Letter of Credit Collateral Account following the payment of all
Obligations in full shall, unless the Administrative Agent is otherwise directed by a court of
competent jurisdiction, be promptly paid over to the Borrower.




     11.2. Preservation of Rights; Amendments. No delay or omission of the Lenders in
exercising 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 Borrowing notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such
Borrowing 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 Administrative Agent and the
number of Lenders required hereunder 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 Lenders until the Obligations have been paid in full.



ARTICLE XII.




THE ADMINISTRATIVE AGENT



     12.1. Appointment. JPMorgan Chase Bank, N.A. is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the “Administrative Agent”)
hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees
to act as such contractual representative upon the express conditions contained in this Article
XII. Notwithstanding the use of the defined term “Administrative Agent,” it is expressly
understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities
to any Lender by reason of this Agreement or any other Loan Document and that the Administrative
Agent is merely acting as the contractual representative of the Lenders with only those duties as
are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the
Lenders’ contractual representative, the Administrative Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a “representative” of the
Lenders



86









 




within the meaning of the term “secured party” as defined in the Illinois Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of
the Lenders hereby agrees to assert no claim against the Administrative Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which claims each Lender
hereby waives.




     12.2. Powers. The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent
shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action
thereunder except any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.



     12.3. General Immunity. Neither the Administrative Agent (in its capacity as
Administrative Agent) nor any of its directors, officers, agents or employees shall be liable to
the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct. Subject to the express terms hereof, the
Administrative Agent will, unless otherwise instructed as described in Section 12.5,
endeavor to administer the Facility in substantially the same manner as it administers similar
credit facilities held for its own account.



     12.4. No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent
(in its capacity as Administrative Agent) nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan Document or any borrowing hereunder;
(ii) the performance or observance of any of the covenants or agreements of any obligor under any
Loan Document; (iii) the satisfaction of any condition specified in Article V, except
receipt of items required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. Except as expressly set forth herein, the Administrative Agent shall not
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 Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity.



     12.5. Action on Instructions of Lenders. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders or all Lenders, as
the case may be, and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Notes. The Administrative Agent shall
be fully justified in failing or refusing to take any action hereunder and under any other Loan
Document unless it shall be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or continuing to take any
such action.



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     12.6. Employment of Administrative Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the default or misconduct of
any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and under any other Loan Document.



     12.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of outside counsel selected
by the Administrative Agent.



     12.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Administrative Agent ratably in accordance with their respective
Domestic Percentages (i) for any amounts not reimbursed by the Borrower (and without limiting the
obligation of the Borrower to do so) for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents, if not paid by Borrower
(and without limiting the obligation of the Borrower to do so), and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent (in its capacity as Administrative Agent and not as a Lender) in
any way relating to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the enforcement of any of the
terms thereof or of any such other documents, provided that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful misconduct of the
Administrative Agent.



     12.9. Rights as a Lender. With respect to the Commitment, Borrowings made by it and
the Note issued to it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The Administrative Agent,
in its individual capacity, may accept deposits from, lend money to, and generally engage in any
kind of trust, debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any other Person.



     12.10. [Intentionally Omitted.]



     12.11. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other documents and
information as it



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has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the other Loan Documents.




     12.12. Successor Administrative Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring Administrative Agent
gives notice of its intention to resign. The Administrative Agent may be removed at any time with
cause, which shall be defined as gross negligence or willful misconduct, by written notice received
by the Administrative Agent from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning Administrative Agent’s giving notice of its
intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower
and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the
Administrative Agent may at any time without the consent of the Borrower or any Lender, appoint any
of its Affiliates which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be
deemed to be appointed hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the resigning or removed Administrative Agent. Upon the effectiveness of the resignation
or removal of the Administrative Agent, the resigning or removed Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Administrative Agent, the provisions of this
Article XII shall continue in effect for the benefit of such Administrative Agent in
respect of any actions taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to
an Affiliate pursuant to this Section 12.12, then the term “Prime Rate” as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative
Agent.



     12.13. Notice of Defaults. If a Lender becomes aware of a Default or Event of
Default, such Lender shall notify the Administrative Agent of such fact. Upon receipt of such
notice that a Default or Event of Default has occurred, the Administrative Agent shall notify
each of the Lenders of such fact.



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     12.14. 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, but in no event less than five Business Days 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 provided that the
request for approval states the time by which a response is needed before approval is deemed given.
If the Lender does not so respond, that Lender shall be deemed to have approved the request. Upon
request, the Administrative Agent shall notify the Lenders which Lenders, if any, failed to respond
to a request for approval.



     12.15. Copies of Documents. Administrative Agent shall promptly deliver to each of
the Lenders copies of all notices of default and other formal notices sent or received and
according to Section 15.1 of this Agreement. Administrative Agent shall deliver to Lenders
within 15 Business Days following receipt, copies of all financial statements, certificates and
notices received regarding the General Partner’s ratings except to the extent such items are
required to be furnished directly to the Lenders by Borrower hereunder. Within fifteen Business
Days after a request by a Lender to the Administrative Agent for other documents furnished to the
Administrative Agent by the Borrower, the Administrative Agent shall provide copies of such
documents to such Lender except where this Agreement obligates Administrative Agent to provide
copies in a shorter period of time.



     12.16. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:




     (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of
such Defaulting Lender pursuant to Section 2.10(b) hereof;




     (b) the Commitments, Loans and LC Exposure of such Defaulting Lender shall not be
included in determining whether all Lenders or the Required Lenders or the Required Facility
Lenders have taken or may take any action hereunder (including any consent to any amendment,
waiver or other modification pursuant to Section 11.2); provided that any waiver,
amendment or modification that increases the Commitment of a Defaulting Lender, forgives all
or any portion of the principal amount of any Loan or Reimbursement Obligation or interest
thereon owing to a Defaulting Lender, reduces the Applicable Margin on the underlying
interest rate options owing to a Defaulting Lender or extends the Maturity Date shall
require the consent of such Defaulting Lender;




     (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




     (i)
so long as no Default or Event of Default has occurred and is
continuing, all or any part of the Swingline Exposure and LC Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Domestic Percentages but only to the
extent (A)
the sum of all non-Defaulting Lenders’ Domestic Exposure plus such Defaulting



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Lender’s Swingline Exposure and LC Exposure does not exceed the total of all
non-Defaulting Lenders’ Commitments and (B) the sum of any
Lender’s Domestic Exposure plus such Lender’s Swingline
Exposure and LC Exposure does not exceed its Commitment;




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Swingline Exposure and (y)
second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Section 11.1 for so long as such LC Exposure is
outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 3.8
with respect to such Defaulting Lender’s LC Exposure during the period such
Defaulting Lender’s LC Exposure is cash collateralized;




     (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Lenders pursuant to Section
2.10 and Section 3.8 shall be adjusted in accordance with such
non-Defaulting Lenders’ Domestic Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Issuing Bank or any other Lender
hereunder, all fees under Section 3.6 with respect to such Defaulting
Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent
that such LC Exposure is reallocated and/or cash collateralized; and




     (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Bank shall not be required to issue,
amend or increase any Facility Letter of Credit, unless it is satisfied that the related
exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by
the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by
the Borrower in accordance with Section 12.16(c), and participating interests in any
newly made Swingline Loan or any newly issued or increased Letter of Credit shall be
allocated among non-Defaulting Lenders in a manner consistent with Section
12.16(c)(i) (and such Defaulting Lender shall not participate therein).



     If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall
not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or
the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or




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such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to
defease any risk to it in respect of such Lender hereunder.




     In the event that the Administrative Agent, the Borrower (unless an Event of Default has
occurred and is continuing, in which case the Borrower’s agreement shall not be required), the
Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC
Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment
and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other
than Competitive Bid Loans and Swingline Loans) as the Administrative Agent shall determine may be
necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage



     12.17. Delegation to Affiliates. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates.
Any such Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Articles XII and XIV.



     12.18. Co-Agents, Managing Agents, Documentation Agent, Syndication Agent, etc.
Neither any of the Lenders identified in this Agreement as a “co-agent” or “managing agent” nor the
Documentation Agent or the Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to
such Lenders as it makes with respect to the Administrative Agent in Section 12.11.



ARTICLE XIII.




BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS



     13.1. Successors and Assigns. 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 13.3.3. 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



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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 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 to one
or more banks or other entities (“Participants”) participating interests in any Loan owing
to such Lender, any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. 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 owner
of its Loans and the holder of any Note issued to it in evidence thereof 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 would
require consent of all of the Lenders pursuant to the terms of Section 14.13 or of
any other Loan Document.




     13.2.3 Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 14.15(a)
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 14.15(a) 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 14.15(a), agrees
to share with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 14.15(b) as if each
Participant were a Lender.



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The Borrower further agrees that each Participant shall be entitled to the benefits of
Sections 4.1, 4.2, 4.4 and 4.5 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 13.3,
provided that (i) a Participant shall not be entitled to receive any greater payment under
Section 4.1, 4.2, 4.4 or 4.5 than the Lender who sold the
participating interest to such Participant would have received had it retained such interest
for its own account, unless the sale of such interest to such Participant is made with the
prior written consent of the Borrower, and (ii) any Participant not incorporated under the
laws of the United States of America or any State thereof agrees to comply with the
provisions of Section 4.5 to the same extent as if it were a Lender.



     13.3. Assignments; Consents.




     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 I
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 Administrative Agent otherwise
consents) be in an aggregate amount not less than $5,000,000, in the case of the Revolving
Facility and $1,000,000, in the case of the Term Facility. 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. Each partial
assignment shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement, provided that the foregoing
shall not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans.




     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 Administrative Agent shall be
required prior to an assignment becoming effective unless (x) in the case of the Revolving
Facility, the Purchaser is a Lender with a Revolving Commitment immediately prior to such
assignment and (y) in the case of the Term Facility, the Purchaser is a Lender, an Affiliate
of a Lender or an Approved Fund. The consent of the Issuing Bank and the Swingline Lender
shall be required prior to an assignment under the Revolving Facility becoming effective.
Any consent required under this Section 13.3.2 shall not be unreasonably withheld or
delayed.




     13.3.3 Effect; Effective Date of Assignment. Upon (i) delivery to the
Administrative Agent of an assignment, together with any consents required by
Sections 13.3.1 and 13.3.2, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment (unless such fee is waived by the
Administrative Agent),



94









 






such assignment shall become effective on the effective date specified in such
assignment. The 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 Loans under
the applicable assignment agreement constitutes “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 or on behalf of 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 Loans assigned to such Purchaser without any further consent or action by the
Borrower, the 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 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 13.3.3, the transferor Lender, the Administrative Agent and the Borrower
shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate, 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 respective
Commitments, 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 or New
York, New York 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, and the
Borrower, the 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 and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.



     13.4. Dissemination of Information. Borrower authorizes each Lender to disclose 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 any and all information in
such Lender’s possession concerning the creditworthiness of Borrower and General Partner. Each
Transferee shall agree in writing to keep confidential any such information which is not publicly
available.



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     13.5. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee which is not incorporated under the laws of 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 4.5(ii).



ARTICLE XIV.




GENERAL PROVISIONS



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



     14.2. 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.



     14.3. Taxes. Any recording and other taxes (excluding franchise, income or similar
taxes) or other similar assessments or charges payable or ruled payable by any governmental
authority incurred in connection with the consummation of the transactions contemplated by this
Agreement shall be paid by the Borrower, together with interest and penalties, if any.



     14.4. 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.



     14.5. No Third Party Beneficiaries. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.



     14.6. Expenses; Indemnification. Subject to the provisions of this Agreement,
Borrower will pay (a) all out-of-pocket costs and expenses incurred by the Administrative Agent and
the Arranger (including the reasonable fees, out-of-pocket expenses and other reasonable expenses
of counsel, which counsel may be employees of Administrative Agent) in connection with the
preparation, execution and delivery of this Agreement, the Notes, the Loan Documents and any other
agreements or documents referred to herein or therein and any amendments thereto, (b) all
out-of-pocket costs and expenses incurred by the Administrative Agent and the Lenders (including
the reasonable fees, out-of-pocket expenses and other reasonable expenses of counsel to the
Administrative Agent and the Lenders, which counsel may be employees of Administrative Agent or the
Lenders) in connection with the enforcement and protection of the rights of the Lenders under this
Agreement, the Notes, the Loan Documents or any other agreement or document referred to herein or
therein, and (c) all reasonable and customary costs and expenses of periodic audits by the
Administrative Agent’s personnel of the Borrower’s books and records provided that prior to an
Event of Default, Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their Affiliates, and their respective
directors, officers, employees, agents and advisors against all losses, claims, damages, penalties,
judgments, liabilities and reasonable expenses (including,



96









 




without limitation, all expenses of litigation or preparation therefor whether or not the
Lenders is a party thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Borrowing hereunder, except that the
foregoing indemnity shall not apply to a Lender to the extent that any losses, claims, etc. are the
result of such Lender’s gross negligence or willful misconduct. The obligations of the Borrower
under this Section shall survive the termination of this Agreement.




     14.7. 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.



     14.8. Nonliability of the Lenders. The relationship between the Borrower and the
Lenders shall be solely that of borrower and lender. The Lenders shall not have any fiduciary
responsibilities to the Borrower. The Lenders undertake no 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.



     14.9. 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.



     14.10. Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO,
ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER 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 LENDERS TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF THE LENDERS 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.



     14.11. Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY



97









 




WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.




     14.12. Successors and Assigns. 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, except that the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents. Any assignee or transferee of the Notes agrees by acceptance
thereof 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 holder of the Notes, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Notes or of any note or notes issued in exchange therefor.



     14.13. Entire Agreement; Modification of Agreement. The Loan Documents embody the
entire agreement among the Borrower, General Partner, Administrative Agent, and Lenders and
supersede all prior conversations, agreements, understandings, commitments and term sheets among
any or all of such parties with respect to the subject matter hereof. Any provisions of this
Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower, and Administrative Agent if the rights or duties of Administrative Agent
are affected thereby, and




     (a) each of the Lenders adversely affected thereby if such amendment or waiver:




     (i) reduces or forgives any payment of principal or interest on the Obligations
or any fees payable by Borrower to such Lender hereunder; or




     (ii) postpones the date fixed for any payment of principal of or interest on
the Obligations or any fees payable by Borrower to such Lender hereunder; or




     (iii) changes the amount of such Lender’s Commitment (other than pursuant to an
assignment permitted under Section 13.3 or a reduction in the Aggregate
Commitment pursuant to Section 2.19 hereof) or the unpaid principal amount
of such Lender’s Note; or




     (iv) extends the Maturity Date;




     (b) all of the Lenders if such amendment or waiver:




     (i) releases or limits the liability of the General Partner under the Loan
Documents; or




     (ii) changes the definition of Required Lenders or Required Facility Lenders,
or modifies any requirement for consent by each of the Lenders; or




     (iii) modifies or waives any covenant contained in Sections 8.13,
9.3, 9.5, 9.7 or 9.9 hereof; or



98









 






     (c) the Required Lenders, to the extent expressly provided for herein and in the case
of all other waivers or amendments if no percentage of Lenders is specified herein, except
that no waivers or amendments (1) affecting the application of payments among the Facilities
shall be effective without the consent of the Required Facility Lenders in respect of the
Facilities adversely affected thereby, (2) extending the scheduled date of any amortization
payment in respect of the Term Loans, or reducing the amount, or extending the payment date,
of any required mandatory prepayment of the Term Loans pursuant to Section 2.24, shall be
effective without the written consent of all of the Term Lenders, (3) affecting Section 2.17
shall be effective without the written consent of the Swingline Lender, (4) affecting
Article III shall be effective without the written consent of the Issuing Bank or (5)
affecting Section 12.16 shall be effective without the written consent of each of the
Swingline Lender and the Issuing Bank.



     14.14. Dealings with the Borrower. The Lenders and their affiliates may accept
deposits from, extend credit to and generally engage in any kind of banking, trust or other
business with the Borrower or the General Partner or any of their Affiliates regardless of the
capacity of the Lenders hereunder.



     14.15. Set-Off.




     (a) If an Event of Default shall have occurred, each Lender shall have the right, at
any time and from time to time without notice to the Borrower, any such notice being hereby
expressly waived, to set-off and to appropriate or apply any and all deposits of money or
property or any other indebtedness at any time held or owing by such Lender to or for the
credit or the account of the Borrower against and on account of all outstanding Obligations
and all Obligations which from time to time may become due hereunder and all other
obligations and liabilities of the Borrower under this Agreement, irrespective of whether or
not such Lender shall have made any demand hereunder and whether or not said obligations and
liabilities shall have matured.




     (b) Each Lender agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate amount of
principal, interest or fees due with respect to any Note held by it (other than payments
received pursuant to Sections 4.1, 4.2, 4.3 and 4.5) which
is greater than the proportion received by any other Lender in respect of the aggregate
amount of principal, interest or fees due with respect to any Note held by such other
Lender, the Lender receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders and such other adjustments shall be
made as may be required so that all such payments of principal, interest or Fees with
respect to the Notes held by the Lenders shall be shared by the Lenders pro rata according
to their respective Commitments.



     14.16. Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective when it
has been executed by the Borrower and each of the Lenders shown on the signature pages hereof.



99









 





     14.17. Patriot Act CIP Notice. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Act.



     14.18. Judgment Currency.




     (a) The Borrowers’ obligations hereunder and under the other Loan Documents to make
payments in a specified currency (the “Obligation Currency”) shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or converted into
any currency other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent or a Lender of the
full amount of the Obligation Currency expressed to be payable to the Administrative Agent
or such Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Loan Party in any court or in any jurisdiction,
it becomes necessary to convert into or from any currency other than the Obligation Currency
(such other currency being hereinafter referred to as the “Judgment Currency”) an amount due
in the Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a rate of exchange
on such currency, by a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the Business Day immediately preceding the date on which the
judgment is given (such Business Day being hereinafter referred to as the “Judgment Currency
Conversion Date”).




     (b) If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, the Borrowers
covenant and agree to pay, or cause to be paid, such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the rate of
exchange prevailing on the Judgment Currency Conversion Date.




     (c) For purposes of determining any rate of exchange or currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.



ARTICLE XV.




NOTICES



     15.1. Giving Notice. 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




100












 





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 telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:




To the Borrower:



First Industrial, L.P.

c/o First Industrial Realty Trust, Inc.

311 South Wacker Drive

Suite 4000

Chicago, Illinois 60606

Attention: Mr. Scott Musil

Telecopy: (312) 895-9380




To General Partner:



First Industrial Realty Trust, Inc.

311 South Wacker Drive

Suite 3900

Chicago, Illinois 60606

Attention: Scott A. Musil

Telecopy: (312) 922-9851




Each of the above with a copy to:



Barack Ferrazzano Kirschbaum & Nagelberg LLP

200 West Madison

39th Floor

Chicago, Illinois 60606

Attention: Suzanne Bessette-Smith and Douglas W. Anderson

Telecopy: (312) 984-3150




To each Lender:



At such address as set forth in its Administrative Questionnaire




To the Administrative Agent:






JPMorgan Chase Bank, N.A., as agent

383 Madison Avenue, 24th Floor

New York, New York 10179

Attention: Vanessa Chiu

Telecopy: (917) 404-7041



101









 




For Borrowings in Qualified Foreign Global Currencies:



J.P.Morgan Europe Limited

125 London Wall

London EC2Y 5AJ

Attention: The Manager

Telecopy: 44 207 777 2360




With a copy to:



Bingham McCutchen LLP

One Federal Street

Boston, Massachusetts 02110

Attention: Stephen M. Miklus

Telecopy: (617) 951-8736



     15.2. Change of Address. Each party may change the address for service of notice upon
it by a notice in writing to the other parties hereto.



[Remainder of page intentionally left blank]





102









 








     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	BORROWER: 	FIRST INDUSTRIAL, L.P.

 	 
	 	By:  	FIRST INDUSTRIAL REALTY TRUST, INC.,
 	 
	 	 	its General Partner 	 
	 



					
	 	By:  	/s/ Scott Musil 	 
	 	 	Name:  	Scott Musil 	 
	 	 	Title:  	CFO 	 
	 



	 	 	 	 	 
	GENERAL PARTNER: 	FIRST INDUSTRIAL REALTY TRUST, INC.

 	 
	 	By:  	/s/ Scott Musil 	 
	 	 	Name:  	Scott Musil 	 
	 	 	Title:  	CFO 	 


[First Industrial
6th Amended and Restated Loan Agreement]


 









 






	 	 	 	 	 



	 	 	 	 	 
	LENDERS: 	JPMORGAN CHASE BANK, N.A., Individually and as

Administrative Agent

 	 
	 	By:  	/s/
Brendan M. Poe	 
	 	 	Name:  	Brendan
M. Poe	 
	 	 	Title:  	Vice President 	 
	 



[First Industrial
6th Amended and Restated Loan Agreement]


 











 




	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., Individually and
as
Syndication Agent
 	 
	 	By:  	/s/
Brett Hill	 
	 	 	Name:  	Brett Hill	 
	 	 	Title:  	Assistant Vice President	 





[First Industrial
6th Amended and Restated Loan Agreement]

 







 




	 	 	 	 	 
	 	U.S. BANK, NATIONAL ASSOCIATION,
Individually
and as Documentation Agent
 	 
	 	By:  	/s/
Sara M. Booms	 
	 	 	Name:  	Sara M. Booms	 
	 	 	Title:  	Commercial Banking Officer	 





[First Industrial
6th Amended and Restated Loan Agreement]

 







 




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, Individually and as Co-Agent

 	 
	 	By:  	/s/
Joel Dalson
 	 
	 	 	Name:  	Joel Dalson 	 
	 	 	Title:  	Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

 	 
	 	By:  	/s/ David Noda
 	 
	 	 	Name:  	David Noda 	 
	 	 	Title:  	SVP & Manager 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]





 












 




	 	 	 	 	 
	 	SUNTRUST BANK
 	 
	 	By:  	/s/
Nancy B. Richards	 
	 	 	Name:  	Nancy B. Richards	 
	 	 	Title:  	Senior Vice President	 





[First Industrial
6th Amended and Restated Loan Agreement]

 







 





	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY

 	 
	 	By:  	/s/ Robert W. Wiarda
 	 
	 	 	Name:  	Robert W. Wiarda 	 
	 	 	Title:  	Senior Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	REGIONS BANK, Individually and as Documentation Agent

 	 
	 	By:  	/s/ Lori Chambers
 	 
	 	 	Name:  	Lori Chambers 	 
	 	 	Title:  	Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	COMERICA BANK, Individually and as Co-Agent

 	 
	 	By:  	/s/ Casey L. Stevenson
 	 
	 	 	Name:  	Casey L. Stevenson 	 
	 	 	Title:  	Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	FIRST COMMERCIAL BANK NEW YORK BRANCH

 	 
	 	By:  	/s/ Jenn-Hwa Wang
 	 
	 	 	Name:  	Jenn-Hwa Wang 	 
	 	 	Title:  	V.P. & General Manager 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	CAPITAL ONE, N.A.
(SUCCESSOR BY MERGER TO CHEVY CHASE BANK, F.S.B.)

 	 
	 	By:  	/s/ Frederick H. Denecke
 	 
	 	 	Name:  	Frederick H. Denecke 	 
	 	 	Title:  	Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., successor-by-merger to Wachovia Bank, N.A.

 	 
	 	By:  	/s/ Brett Hill
 	 
	 	 	Name:  	Brett Hill 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[First Industrial 6th Amended and Restated Loan Agreement]